Identifying the extent of the inconsistency

In Carter v. Canada (Attorney General), the Court considered the question of assisted suicide. The precise legal question was the constitutional validity of s. 241 (b) of the Criminal Code (which makes it an offence to aid or abet someone in the commission of suicide), and s. 14 of the Criminal Code (which provides that a person cannot consent to death). The Court held that these provisions were constitutionally defective unless exceptions were available in certain types of cases. However, the Court suspended its declaration for a year, in order to give Parliament a chance to enact the required statutory scheme.

Of all the fascinating issues which this case raises, what initially caught my attention was the curious wording of the declaration granted by the Court. It reads as follows (at para. 147):

Section 241(b) and s. 14 of the Criminal Code unjustifiably infringe s. 7 of the Charter and are of no force or effect to the extent that they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

Consider this question: is the Court (a) striking down s. 241(b) and s. 14 in their entirety (albeit suspended for one year), or (b) reading in the required scheme of exceptions (again, albeit suspended for one year)?

While you are thinking about that, let’s try a little thought experiment. Suppose that the words “to the extent that” in the declaration were replaced by “because.” That is, suppose the the declaration read:

Section 241(b) and s. 14 of the Criminal Code unjustifiably infringe s. 7 of the Charter and are of no force or effect because they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

In that case, it would be clear that s. 241(b) and s. 14 would be struck down in their entirety—the material following the “because” would merely be a summary of the Court’s reasons for doing so.

Now, would such a summary belong in the text of the declaration? No, it would not. A declaration declares the rights of the parties—it is not meant to summarize the Court's reasons for making the declaration. So, let us imagine a declaration that stopped before the “because”—that is, a declaration which read in this way:

Section 241(b) and s. 14 of the Criminal Code unjustifiably infringe s. 7 of the Charter and are of no force or effect.

Frankly, this is the declaration which I would have expected. Of course, by striking down the two sections in their entirety, a declaration worded in this way would throw out the baby with the bath water, so to speak, since the two sections are constitutionally valid in the vast majority of their applications. However, that is why the Court would suspend the declaration for a year—to allow Parliament to save the baby by enacting the required exceptions.

So, what does it mean to add to this the words which the Court does add—that is, to add the words:

... to the extent that they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

Remember that s. 52 of the Constitution Act, 1982 provides that laws are of no force and effect when inconsistent with the Constitution, but only “to the extent of the inconsistentcy.” For this reason, it is always necessary in constitutional cases to identify the extent of the inconsistency. Furthermore, identifying the extent of the inconsistency depends on factors which, while sometimes too obvious to mention, in principle constitute a distinct analytical exercise.

For instance, even limiting the declaration to s. 241(b) and s. 14 of the Criminal Code is, technically, a question of severance—that is, a question of identifying the extent of the inconsistency as being those two specific parts of the statute rather than (for instance) the statute as a whole. Now, the appropriateness of severance in this case is so obvious that you would hardly expect the Court to even mention the issue (indeed, it does not). However, there are cases in which severance is not appropriate—that is, where the “extent of the inconsistency” may be the whole statute, even if the Charter violation is actually localized in specific sections. (For instance, the remainder of the statute may no longer constitute a coherent scheme once those sections are removed—obviously not a problem in this case.)

Furthermore, since Schachter v. Canada, it has been understood that severance is not necessarily limited to severing things which are present in the statute, but can also be used to sever things which are absent. If the statute fails to include something which is constitutionally required, then it is conceptually possible to declare that failure to be the extent of the inconsistency—in which case, the constitutionally required element springs to life. This is what we sometimes call “reading in” the required elements—but in the end it is simply another way of identifying the extent of the inconsistency, and declaring the law void to that extent.

Now, the “reading in” form of severance is subject to some limitations and considerations which are a distinct from the “reading down” form of severance. But my point is that when the Court does read something in, what it is actually doing is:

• identifying the absence of some element to be the extent of the inconsistency with the Constitution

• declaring that absence to be of no force and effect, with the result that

• the absent element springs to life.

By now, you have probably guessed what answer I am going to offer to the question I asked above: is the Court (a) striking down s. 241(b) and s. 14 in their entirety (albeit suspended for one year), or (b) reading in the required scheme of exceptions (again, albeit suspended for one year)? The answer, to end all suspense, is (b)—the Court is clearly reading in the required scheme of exceptions.

What else could the words from “to the extent that” onwards possibly be doing? Just considering ordinary usage, the words “to the extent that” do not indicate the reason you have done something (which would not belong in the text of the declaration anyway). Instead, they are a limitation on what you have done. Section 241(b) and s. 14 are only declared to be of no force and effect to a certain extent—and that extent is an absence of certain exceptions. Declaring that kind of absence to be of no force and effect is what “reading in” actually is.

Yet, it seems virtually impossible that the Court actually meant to read in the required exceptions. I say that for several reasons:

• The Court does not discuss whether reading in is an appropriate technique in this case for identifying the extent of the inconsistency. I do not think that reading in has become so normalized that it would be done without some explicit reference to the question whether it is appropriate.

• The orthodox view would be that reading in would not be appropriate in this case. Normally, a Court is reluctant to read in exceptions unless the precise nature of those exceptions is clearly implied by the interaction between the impugned provisions and the constitutional requirement. To put it another way, the Court is reluctant to use reading in to effect the open-ended construction of a complex scheme. Yet, in this case, the required exceptions certainly appear to form just that kind of complex scheme.¹ This makes it even more doubtful that the Court would have read them in without explicit discussion.

• If the Court had meant to read in the required exceptions, then it is difficult to understand the necessity of suspending the declaration for a year. The usual logic for suspension of a declaration would be that some grave situation would result if the declaration took effect immediately—for instance, in this case, assisted suicide would become legal in all circumstances (not just the constitutionally-required circumstances). Yet, that assumes that the sections are being struck down altogether. If, instead, the required exceptions are being read in, then it seems that no grave situation would result if the declaration took effect immediately.

So, it seems very unlikely that the Court meant to read in the required exceptions. Yet, the wording of the declaration is very clear—in fact, I cannot see that it permits any other interpretation. Of course, if Parliament acts within the year, the question is essentially moot. Otherwise, it could be a very interesting question indeed.

Notes