OTTAWA – Advocates of medical assistance in dying are hoping to persuade MPs to amend the federal government’s proposed new law to make it less restrictive — but they may have more luck focusing their attention on senators.
Unlike elected parliamentarians who avoided the sensitive issue until forced to deal with it by the Supreme Court, appointed senators chose to grapple with the issue more than 20 years ago, creating a special committee on euthanasia and assisted suicide.
And now some senators argue their immunity to the political pressures facing MPs equips them to more independently and impartially assess whether the proposed law complies with the charter of rights and respects last year’s so-called Carter decision by the top court, which struck down the ban on assisted suicide.
At least two of them — independent Liberals James Cowan and Serge Joyal — don’t believe it does pass the charter test and they’re prepared to try to amend the bill or even defeat it if necessary.
Joyal says another option would be to refuse to vote on the bill until the government agrees to refer it to the Supreme Court to see if it passes muster — much as the Senate did on the previous Harper government’s initial attempt to unilaterally reform the upper house, which the top court eventually determined could not be done without the consent of provinces.
“As much as we understand the political context in which a delicate issue like this one takes place, nevertheless we have to have a broader perspective,” Joyal, an acknowledged constitutional authority, said in an interview Friday.
“That’s why we have a Senate.”
He likened the challenge facing the Senate to the situation in 1989, when the Senate killed an abortion bill that had passed the Commons. Canada has been without an abortion law ever since.
Cowan and Joyal were members of the special joint parliamentary committee which recommended a much more permissive approach to assisted dying than has been adopted by the government.
Both Conservative and Liberal senators on the committee supported the majority recommendations, although Conservative MPs did not. While some Conservative senators have since denounced the majority report, the consensus among those on the committee suggests the government might have more difficulty getting the numbers to pass the bill in the Senate than in the House of Commons.
“I think that the government has added too many conditions that restrict access to medical assistance in dying beyond, much beyond, what the Supreme Court has stated in Carter,” Joyal said, adding that’s not what he expected from a governing party that has declared itself to be the party of the charter.
The Supreme Court has given the government until June 6 to enact a new law and government House leader Dominic LeBlanc warned Thursday that if the bill is not passed by that deadline, there will be a “a complete vacuum in terms of a Criminal Code framework around this particularly sensitive issue.”
“To say there’s a legal void is not true,” retorted Joyal, noting that the top court laid out parameters in the Carter decision for medical assistance in dying which would apply in the absence of a new criminal law.
Should it come down to choosing whether to support the new law, unamended, or leaving the Carter decision to govern assisted dying, Joyal said: “I would trust more the court than such a bill.”
Similarly, Cowan said he’s disappointed that the proposed law is “narrower, much more minimalist” than he’d hoped. While he’s waiting to hear from legal experts, Cowan said if he concludes it doesn’t meet the charter “floor” imposed by the court in Carter, he’ll feel no obligation to support it.
Cowan said he doesn’t “at all” accept the argument that the unelected Senate has no business rejecting the legislation if it’s passed by the House of Commons.
“We’re an independent house and … I don’t think they could claim they had a mandate from the Canadian people to implement this particular piece of legislation,” he said.
Indeed, during last fall’s election campaign, the Liberals promised — in a written response to Dying with Dignity Canada — to bring in “a legislative framework that respects the Constitution, the Charter of Rights and Freedoms, and the priorities of Canadians.”
“They specifically promised that and we’re not seeing it,” said the advocacy group’s head, Shanaaz Gokool, adding that she remains “cautiously optimistic and hopeful” that the government will agree to amend its proposed law.
Liberal MP Rob Oliphant, who co-chaired the special joint committee, said he’s hopeful the Commons justice committee and the Senate will do their jobs, scrutinizing the legislation thoroughly and making sure it can withstand a charter challenge. He noted that MPs will not be “whipped” to support the bill as is.
And if that means the bill isn’t passed by the June 6 deadline, so be it, he added.
“That deadline is less important to me than having excellent legislation. Good enough legislation is not good enough,” Oliphant said.
“This is a legacy piece of legislation that will be affecting Canadians for a generation or more and it’s life and death and we have to make sure we have excellent legislation.”
In Carter, the court ruled that the ban on assisted dying violated the charter guarantee of the right to life, liberty and security of the person. It said medical help in dying should be available to clearly consenting adults with “grievous and irremediable” medical conditions who are enduring physical or mental suffering that they find intolerable.
The government’s more restrictive bill would require a person to be a consenting adult, at least 18 years of age, in “an advanced stage of irreversible decline” from a serious and incurable disease, illness or disability and for whom a natural death is “reasonably foreseeable.”
The bill does not extend the right to assisted dying to those suffering only from mental illnesses or to mature minors. Nor does it allow for those suffering degenerative, competence-impairing conditions such as dementia to make advance requests for medical assistance in dying.