It’s a troubling trend, inspired by Evangelical Christians.
A judge of the British Columbia Supreme Court has agreed to fast track the lawsuit of Gloria Taylor, who suffers from ALS and is seeking to have a doctor assist her in ending her life.
What’s troubling is that the House of Commons has defeated proposed legislation to legalize physician assisted suicide three times in the last six years, most recently in April 2010. Because the will of Parliament, the peoples’ representatives, isn’t bending on this issue, Ms. Taylor has resorted to the courts – where, by the way, the Supreme Court of Canada decided in 1993 that Parliament was the appropriate place to make the decision (Rodriguez v British Columbia).
Will the courts of British Columbia accept the decisions of Parliament and the Supreme Court of Canada as conclusive? One used to be able to answer this question with a strong and emphatic “yes.” That’s no longer the case, however, because the argument “times have changed” seems to be carrying an authority that has been used to outweigh the stability provided through the nation being able to rely on precedent. i.e. “Yes, I know that’s what Parliament decided and what the Supreme Court of Canada said. But times have changed since those decisions were made, and people now feel differently.”
I say this is a trend because it follows on the heels of the unanimous decision of the House of Commons on another issue that was reversed through the courts. In 1999 Parliament decided not to change the definition of marriage. In 2004 the Supreme Court of Canada ruled that Parliament alone had jurisdiction to determine the definition. (Reference re Same-Sex Marriage). But the courts of Ontario, Quebec, British Columbia, etc decided that same-sex marriage was to be recognized province by province by province, one decision at a time. In 2005, Parliament changed the definition of marriage; partly to avoid the checkerboard that was emerging in Canada as a result of the decisions of courts with jurisdiction only within their province – who based their decisions on “changing times.”
This case also sits in the wake of Parliament passing revisions to the Criminal Code in regard to prostitution in 1985. The Supreme Court of Canada decided in favour of the law’s constitutionality in 1990 (Reference re ss. 193 and 195.1(1)(C) of the criminal code (Man.) ). Yet an Ontario Superior Court judge found the law lacking in September 2010, concluding that “times had changed” since the Supreme Court of Canada’s earlier ruling. The appeal of the 2010 decision was recently heard by the Ontario Court of Appeal and their decision is pending.
The concepts of parliamentary supremacy and prevailing precedent of the higher courts (i.e., all courts submit to decisions of the Supreme Court of Canada, courts in the provinces submit to decisions of the province in question’s Court of Appeal, etc) have long established stability in the legal system for all Canadians. “Times have changed” appears as a standard of convenience to allow some wiggle room to bypass the obstacles of parliamentary rule and stare decisis (the latin legal term for “the matter has already been decided and one should not disturb that which has been settled”).
This troubling “times have changed” trend creates legal uncertainty.
Today’s challengers are engaging the courts largely because of personal self-interest (an ALS sufferer seeks assistance in her death; two people of the same-sex seek marital status; a dominatrix seeks to legally operate her existing and illegal indoor prostitution “business” – yes, all deserving of some form of sympathy for their situation). Not finding success with elected representatives, these individuals seek another forum where their objectives can be pursued – the courts. The trend is disconcerting, not only because it ignores the will of Parliament but because the courts are engaging in the creation of legal uncertainty by reversing fairly recent legal decisions – at least recent by historical standards – and they are doing so based on the requests of individuals who readily admit that those requests are looking at the best interests of self (and perhaps a small community of like-minded individuals), not the best interests of society.
Two centuries ago the challengers were focused on others. They were also focused on using precedents of the courts – not overturning them – to build arguments that might persuade the will of Parliament, not overrule it.
It was the campaign to abolish the slave trade that saw Evangelical Christian lawyer Granville Sharp in the courts seeking declarations that recognized the human value of slaves, previously only recognized as property, while Evangelical Christian politician William Wilberforce engaged the battle for freedom in the British Parliament.
Today’s troubling trend – unfortunately focused on self-interest – was inspired by creative, caring Evangelical Christians who were focused on others; not people like themselves, but people whose humanity and basic freedoms were not being recognized. People, whose recognition by both courts and Parliament would result in the betterment of society not simply the satisfaction of self-desire.
Reprinted with permission by the National Post’s Holy Post on Tuesday, August 9, 2011.