Last week the British Columbia Court of Appeal decided to allow the Attorney General’s appeal to the constitutional challenge of the assisted suicide prohibition: the Carter case. This case featured two persons named Gloria Taylor and Lee Carter. Both suffered from intractable and progressive diseases, and wished to have the option of physician assisted suicide when their life would become intolerable (they both passed away before the appeal was rendered). However, s 241(b) of the Criminal Code makes aiding or abetting a person to commit suicide a crime. Ms. Carter and Taylor challenged the constitutionality of the section alleging a violation of their right to life, liberty and security of the person, and of their right to equality. One of the major hurdles they faced was that a similar issue involving the same section of the Code was challenged on similar grounds and had been decided by the Supreme Court of Canada in the past. In Rodriguez, the plaintiff lost her appeal to the Supreme Court by a close 5 to 4 vote. Nevertheless, the trial judge, Justice Smith, found that she was not bound by the Supreme Court ruling because this case raised three new grounds: (1) the right to life was not at stake in Rodriguez; (2) two principle of fundamental justice did not exist at the time of Rodriguez, overbroadness and gross disproportionality; (3) the majority did not consider s 15 (equality) in its entirety in addition to the fact that recent Supreme Court decisions changed the applicable test. She found in the plaintiffs’ favour and declared the section unconstitutional with a grace period of one year for the government.
« Une société vraiment libre peut accepter une grande diversité de croyances, de goûts, de visées, de coutumes et de normes de conduite. » le juge Dickson.
Qu’arrive-t-il lorsque l’État décide de promouvoir cette diversité à l’école malgré l’opposition de certains parents? La Cour suprême a partiellement répondu à cette question dans son arrêt SL c Commission scolaire des Chênes. Pour ceux et celles qui ne sont pas familiers avec cette affaire, il s’agit d’une famille catholique du Québec qui a tenté de soustraire ses enfants du cours d’éthique et cultures religieuses rendu obligatoire en 2008 par le Ministère de l’éducation. Ce cours a pour but de laïciser le système d’éducation en remplaçant les anciens cours sur la religion catholique, sur la religion protestante et sur la morale par un seul cours portant sur les religions du monde et sur l’éthique. Le cours a donc pour but de mettre fin à un enseignement religieux chrétien ne correspondant plus à notre société pluriconfessionnelle et laïque.
On 30 September 2011 the Supreme Court of Canada released the Insite decision. This case began when the Government of Canada made it clear that it wouldn’t renew Insite’s – a supervised drug injection clinic in the Down Town Eastside of Vancouver – exemption from the application of the Controlled Drugs and Substances Act (the CDSA). Insite and its many supporters decided to challenge the constitutionality of the CDSA applicability to Insite and of the refusal of the Minister of Health to grant the exemption. A few weeks ago, the judicial battle ended with a victory for society, and for Insite and its patients.
I am happy for the people who are involved with Insite; it is a great victory for them and probably a great relief as they won’t have this Sword of Damocles hanging over their heads anymore. It was, however, a predictable victory. The Supreme Court of British Columbia and the British Columbia Court of Appeal had already found that the applicability of the CDSA to Insite violated section 7 of the Charter (right to liberty, life and personal security of the person). The facts of this case were overwhelmingly in favour of Insite. The project had the support of the community, the business close to Down Town East Side, the public health authorities, the City ofVancouver and theProvince ofBritish Columbia. The federal government, to no surprise, only had demagogical arguments. It was thus a predictable victory as I couldn’t conceive how the Supreme Court, in anyway shape or form, could agree with the federal government. The CDSA was not found inapplicable but the refusal of the Minister of Health was found to violate section 7 and the Court ordered the government to exempt Insite and to give an exemption to any safe injection site that would meet certain criteria.