Justice minister hires academic who thinks Supreme Court erred on assisted dying

OTTAWA — Justice Minister Jody Wilson-Raybould has hired a new legal affairs adviser who once argued that the Supreme Court over-stepped its bounds when it struck down the ban on medically assisted dying.

Gregoire Webber is touted as a brilliant and highly respected legal scholar by fellow academics but his appointment has nevertheless raised some eyebrows given his past criticism of last year’s landmark decision.

Shanaaz Gokool, president of Dying with Dignity Canada, says it raises another flag about the kind of advice Wilson-Raybould is relying upon when it comes to crafting laws governing the right of Canadians to seek medical help to end intolerable suffering.

Even before Webber’s recent appointment, advocates of a permissive approach to assisted dying had complained that Wilson-Raybould was relying too heavily on advice from Justice Department officials who had spent years arguing in court against legalization of medically assisted death.

The minister introduced a restrictive new law last spring that allows assisted dying only for adults who are already near death.

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The new law was enacted in June but it already faces legal challenges and, within a year, Wilson-Raybould will have to deal with issues that weren’t addressed in the legislation: advance directives, mature minors, people suffering solely from mental illness.

Critics believe the new law will eventually be struck down because it doesn’t comply with the Charter of Rights or the Supreme Court ruling.

The Supreme Court did not confine the right to medical assistance in dying to the terminally ill. It directed that the right should apply to all competent adults with “grievous and irremediable” medical conditions that are causing enduring suffering that they find intolerable.

In a posting last year to the U.K. Constitutional Law Association’s blog, Webber, the Canada research chair in public law and philosophy of law at Queen’s University, wrote that the top court’s reasoning was “unimpressive.” He accused the court of “failing to engage with the evidence before it” and said it erred in deciding that the criminal law prohibition on assisted dying was aimed strictly at protecting vulnerable people, not the preservation of life.

The ruling known as the Carter decision was one of three cases Webber cited in the blog post to argue more broadly that the Supreme Court is effectively rewriting Canada’s Constitution, circumventing the formal amendment process that would require the approval of Parliament and at least seven provinces.

In doing so, he said: “the court is not only opposing legislative measures introduced by the government, but it is also proposing and enacting new measures. It is legislating.”

While that’s not necessarily a violation of the court’s role, Webber wrote, “The point is rather this: if the court legislates in introducing new constitutional rights and duties, it is doing some of the governing, to which the question presents itself — who stands as the opposition to this governing?”

Given those views, Gokool said she’d like clarification about what role Webber will play on the assisted dying file in future.

“It just raises a flag of who’s being relied upon to provide legal advice to the justice minister,” Gokool said. “It doesn’t seem from our perspective that the justice minister has gotten well-balanced legal advice.”

Joanne Ghiz, a spokeswoman for Wilson-Raybould, said Webber is “a qualified legal expert and he will help the minister deliver on her mandate letter.”

“We are very proud of the calibre and diversity of experience and expertise in the individuals joining our team across government,” she added.

University of Ottawa law professor Errol Mendes said Webber’s past writings suggest a more conservative approach to judicial interpretation of the Constitution than the prevailing theory that it should be interpreted as “a living tree” that constantly evolves. But he said it would be unfair to lump Webber in with anti-court conservatives who rant against judge-made law; his views are “far more complex” and, in any event, more recent writings suggest his thinking has evolved.

“He is undoubtedly a brilliant and highly capable individual,” Mendes said.

Similarly, University of Waterloo political scientist Emmett Macfarlane, who specializes in the impact of the Supreme Court and charter of rights on public policy, called Webber “an excellent choice” and “a well respected scholar.”

“I think his record of critical analysis might demonstrate an openness on the part of the justice minister to consider different perspectives on various issues,” Macfarlane said.

Joan Bryden , The Canadian Press