On C-14, impasse not an option

In spite of the rewriting in the Senate of the Liberal bill on medically assisted death, rumours of an impending parliamentary crisis are somewhat exaggerated.

There are better-than-even odds that a collision between the two houses of Parliament will ultimately be averted, and more than enough potential common ground between the government and the senate for a law to see the light of day sooner rather than later.

There is a strong consensus in both houses of Parliament that it is desirable to have a federal law in place, if only to provide the provinces with a basic common hymn book to sing from.

Although some parliamentarians have argued no law would be preferable to the bill originally drafted by the government, a federal-legal void has not emerged as anyone’s first choice.

A strong majority of MPs and senators support the right to medically assisted death. There is no manifest political will on the part of any party to eventually try to roll back the clock. Where there is disagreement is on the pace at which the change should be implemented if the law is to live up to the requirements of the Charter of Rights and Freedoms.

The government had proposed that, at least initially, only those whose death is “reasonably foreseeable” be eligible for medical assistance in dying. It claims a gradual approach does not make the bill unconstitutional.

The Senate disagrees. It has amended the government’s original bill to include people whose death may not be imminent but who suffer from a “grievous and irremediable” condition. It is not a minor difference, nor is it an irreconcilable disagreement of the kind that brought about the demise in the Senate, in the early ’90s, of the last federal attempt to regulate access to abortion.

Back then, the group of senators that united to defeat the government’s bill was made up of parliamentarians who either would countenance no law that allowed women to seek an abortion at any stage in a pregnancy or who would accept no restrictions on the right to not carry a fetus to term.

Neither side was open to a compromise that could have led to a charter-proof law. In the case of assisted dying, there are at least two possible avenues to a resolution.

The government could accept Bill C-14 as amended by the Senate and put it to a Commons vote. For every Conservative or Liberal vote lost to a less restrictive version of the legislation, there would likely be an equivalent NDP or a BQ vote in favour of it.

If, as every signal from the cabinet indicates, it declines to go that route, it will not be for fear of not being able to secure enough support in the Commons or to avoid a backlash in public opinion. Alternatively, the Liberals could strip the bill of the most contentious senate amendments before having the Commons vote to send it back for adoption in the upper house.

No one knows for sure whether at that point a majority of senators would kill the bill rather than defer to the elected house. My educated guess is having done due diligence on the legislation, enough of them would ultimately bow to the will of the House of Commons for it to pass. If, as many senators believe, Bill C-14 is too restrictive to be constitutional, the courts will fix it.

Neither side in this debate can benefit from an impasse or a prolonged battle of wills. For the government, a signature piece of legislation but also an institutional experiment sponsored by no less than the prime minister hang in the balance.

Under the changed terms of engagement between the government and the more independent Senate Justin Trudeau has set out to create, legislative bargaining between the two houses of Parliament stand to become if not the norm, at least more frequent. That’s a prospect that elicits equal measures of delight and horror in many quarters. Neither is totally justified. But more on that in a future column.