Time to put the Senate in its place
So Bill C-14 has passed, by the grace of God but more importantly the Senate. It was no sure thing, you understand. But in the end a majority of senators, having earlier demanded changes to the legislation, and having had virtually all of these accepted, declined to punish the Commons for not yielding to every one of their demands.
We have averted, then, the gruesome prospect of the Senate simply killing the bill, as it did, infamously, in the matter of abortion, or stonewalling or otherwise imposing its will upon the Commons until it was delivered legislation exactly tailored to its designs. There will be federal legislation governing the practice of assisted suicide and euthanasia, at least until the next Supreme Court decision, rather than the l egal void for which some enthusiasts of death on demand had hoped.
But there will be other bills, and other votes, and we cannot be sure how these will turn out. As it is there is Bill C-7, on the terms of unionization at the RCMP, rewritten in the Senate national security and defence committee this week and likely to be sent back to the Commons. And in the offing is the electoral reform bill, whatever it might prove to be, which some senators are already warning has no guarantee of passage.
Some sort of precedent has been set here, but we do not yet know what it is. Is it that the Senate will not presume, as a general rule, to veto legislation passed by the people’s representatives — that the government of Canada will remain answerable to the popularly elected Commons and not the ap- pointed Senate, on the principle that if a people gets the government it deserves it should at least get the government it voted for? Or is it merely that senators chose to give the Commons the benefit of the doubt this time but might not in future? Was this a white flag or a warning shot?
On the merits, the Senate was right to reject the amendment proposed by Sen. Serge Joyal, which would have suspended that section of the bill requiring that death be “reasonably foreseeable” pending a reference to the court, as it was wrong earlier to have demanded its outright removal. For all the ex cathedra pronouncements issuing from the Senate floor, no one can say with any certainty how the court might rule on the matter.
Legal scholars are divided, and the government could plausibly argue that, the court having declined to pronounce one way or the other in the Carter decision on whether the patient to be “assisted in dying” must be in some likelihood of dying unaided, the text we should consult was not Carter, but the Charter: a law need not exactly replicate the language of the former to be in compliance with the latter.
Indeed, it’s not clear it is even out of line with Carter. That may be the judgment’s short- form name, after Lee Carter, one of the appellants, but the case on which it was based was not hers, or her mother Kay’s, but that of Gloria Taylor, whose condition (ALS) was decidedly terminal. The court is at pains to stress that the decision applies only “in the factual circumstances of this case,” referring at various points to “people like Ms. Taylor” or “persons in her situation,” i.e. near the “end of life,” as it was universally agreed was the issue before advocates started moving the goalposts.
And of course, it’s not at all clear that “reasonably foreseeable” means t erminal, at least as that term is ordinarily understood: The legislation itself is explicit that this does not require any prognosis “as to the specific length of time” a patient has to live, such as the six- month limit Oregon and Washington require. Like everything else in the bill, that awaits judicial interpretation. If experience is any guide, the definition may prove increasingly elastic.
And though the advocates of unrestricted euthanasia were unable to pack everything they wanted into C-14, they will continue to push to remove what limits remain — not only to embrace less serious conditions, but children, the mentally ill and advance directives — whether through legislation or the courts. Opponents must be prepared to push just as hard in the other direction. Otherwise the ratchet effect kicks in: If all they do is try to contain the advance of euthanasia, it will be only a matter of time before its victory is absolute.
Meanwhile, there remains the question of what to do about the Senate. While the Senate has always had the formal power to overturn, block or amend bills passed by the Commons, the Fathers of Confederation expected i t would exercise that prerogative only in the most extreme cases. That is why they chose to make the Senate an appointed, rather than elected body: to deny it the legitimacy that would permit a more unbounded use of its powers.
That the Senate has not always heeded that constraint in the past is troubling enough. But it is clear that a good number of senators believe themselves to have acquired a new authority under Justin Trudeau’s reforms: that having been “freed” from caucus they have also been “freed” from any obligation to defer to the Commons — as if they were the chamber not merely of second thoughts, but the last word. They will have to be gently disabused of this illusion.