Section 17 of the British North America Act provides: “There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons.”
The Senate of Canada is once again coming under fire and this time it has nothing to do with expense accounts.
If you haven’t been paying attention, Bill C-14 the Government’s legislation regulating physician assisted dying failed to meet the June 6 deadline imposed by the Supreme Court and for about 10 days, there was no law against assisted suicide in Canada. The legislation had been passed by the elected House of Commons only to hit a speed bump in the unelected, upper chamber.
C-14, you might recall, will allow a patient, with an irremediable and terminal condition, suffering intolerable pain and being able to give full and informed consent, to seek and receive a medically assisted death.
Dying with dignity advocates have criticized the legislation on two grounds – that an advance directive (a personal directive in Alberta) is not permitted and that the procedure is limited to those with a terminal condition.
In the past few months, several legal clients have inquired about advance directives. I agree with the government that they are an inappropriate mechanism to allow medically assisted dying. For such a final decision, the patient must be able to provide informed consent contemporaneous to the procedure (not by a personal directive drafted years earlier, when the patient’s irremediable condition was not even contemplated).
The restriction to those “in the final stages” is more problematic. The government wants to ensure safeguards to protect the vulnerable and against elder abuse. On the other hand, a person with a non-terminal, but irremediable and grievous condition, will be forced to live with their pain indefinitely. It seems cruel that a non-terminal patient will be forced to live in pain indefinitely, while a terminal patient, with the same condition, will be eligible for a medically assisted death.
That was certainly the feeling of our Senate. Rather than deferring to the elected chamber and rubber stamping C-14 as passed by the House, they exercised some muscle, amended the bill to remove the requirement for terminal final stages and sent the bill back to the House of Commons.
This had the potential for an interesting game of ping pong not seen in this country for some time. A bill does not become law in Canada until passed by both Houses in identical form. So as long as the two chambers could not agree, the stalemate would continue. With the legislative void created by the Supreme Court striking down the former provisions against assisted suicide in play, the stakes of the impasse were significant.
Constitutionally, the Senate was well within its rights to stand firm on the inclusion of the non-terminal. However, the legitimacy of an unelected chamber blocking the will of an elected House of Commons raises questions of legitimacy in a modern democracy.
But then what is the point of a $100 million per year Senate, if it is simply going to rubber stamp legislation submitted to it by the lower House? Certainly in the Harper era, with a majority of the Senators appointed by him and sitting in the Conservative Caucus, the Senate operated more or less like a Conservative branch plant. An important government bill like C-14 would not have been amended by a Harper controlled Senate.
But the current Senate is different. Senators appointed by Prime Minister Trudeau do not sit in his caucus and those who once did, were all liberated a couple of years ago. The current prime minister cannot mathematically, or otherwise, control the Senate, which allows it to serve as an important check on executive power.
John A. Macdonald fancied the Senate as the chamber of “sober second thought” and in this instance that is exactly how it acted. Rather than impose its will on the elected Commons or allow the stalemate, the Senate amended the bill to include the non-terminal. When the government and the House rejected that amendment and sent the bill back to the Senate, it passed the bill thereby filling the legislative void.
While the Senate has always had the constitutional power to block, overturn or amend bills submitted to it, the Fathers of Confederation’s expectation was that it would use that power discreetly. Its powers were designed more to slow down legislation and allow for reconsideration, than for overturning the will of the people’s elected representatives. That is what occurred here – the Senate was concerned that by not including the non-terminal, the bill was constitutionally suspect – but having expressed that view and having that view then rejected by the House, the Senate paid deference to the will of the elected chamber.
I am not convinced that C-14 is unconstitutional. Firstly, nobody can predict with any certainty what the courts will do at any given time. But more to the point, when the Supreme Court struck down the old law, it was careful not to make general pronouncements or establish parameters for medically assisted dying. It was only ruling on the factual circumstances before it.
Regardless, having a law in place (any law) is better than the uncertainty created by a legal void. Between acting like a rubber stamp or imposing its unelected will on the government and elected House, the Senate staked out an appropriate middle ground. By expressing its concerns, but then conceding, the Senate demonstrated new-found purpose as an important check and balance in our democratic governance.
Brent Rathgeber QC is a St. Albert lawyer and former MP.
