Assisted Dying, Suspended Declarations, and Dialogue’s Time

Abstract

How long does it take the elected branches of government to study complex policy questions and develop legislation that respects constitutional rights? Judges often suspend for 12 months declarations that a law unjustifiably limits a right protected by the Canadian Charter of Rights and Freedoms. Dialogue theorists praise such suspensions for allowing the legislative and executive branches to act. The paper recounts the experiences of the governments of Quebec and of Canada in grappling with assisted suicide en route to legislating. It concludes that tackling a serious policy issue – including research, public education and consultation, and meaningful deliberation – may take much longer than 12 months. Consequent possible changes to judicial practice include granting fewer suspensions and prompting fuller debate in court on the appropriate order. As for dialogue theorists, they might better align their justifications of suspensions with legislative realities.

Keywords: Charter remedies, assisted dying, Carter v Canada (Attorney General), suspended declarations, judicial review

JEL Classification: K19