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Canadian Senators mull how far to go to protect charter rights in assisted dying bill

Canadian Senators mull how far to go to protect charter rights in assisted dying bill
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There was a strong message conveyed to cabinet ministers last week as senators grilled them on the Trudeau government’s bill to expand access to medical assistance in dying.

We told you so.

Ministers were repeatedly reminded that when the federal government introduced its first bill in 2016 to legalize doctor-assisted death in Canada, senators warned it was unconstitutional and predicted it would be struck down by the courts. A majority of senators voted at that time to drop the central pillar of the bill: that only those whose natural death is reasonably foreseeable should be eligible for an assisted death.

The government rejected the amendment and senators ultimately backed down. But, as they’d predicted, the near-death provision was subsequently struck down in a Quebec Superior Court ruling in September 2019.

Now, some senators are convinced the bill introduced to bring the law into compliance with that ruling is also unconstitutional. And they’re pondering how far they should go to protect the rights of Canadians seeking access to medically assisted death.

All legislation must be approved by both houses of Parliament. The Senate can defeat a bill outright, although that has rarely happened.

If the Senate amends a bill, it is sent back to the House of Commons to decide whether to accept or reject the changes. The Senate can dig in its heels and insist on an amendment rejected by the Commons, potentially leading to legislation ping-ponging back and forth between chambers without resolution.

In practice, however, because senators are not elected, they generally acquiesce to the will of the Commons, as they did on the 2016 assisted-dying bill.

But some senators argue that a different standard applies when fundamental constitutional rights are at stake.

“If it’s a very clear violation of a constitutional right, I think we have the right, the moral obligation even, to stick to our position and to insist (on amendment),” says Sen. Pierre Dalphond, a former Quebec Appeal Court judge who sits with the Progressive Senate Group.

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Liberal MP stresses duties of members to protect rights of Canadians in case for assisted dying bill

Liberal MP stresses duties of members to protect rights of Canadians in case for assisted dying bill – Oct 19, 2020

Dalphond is highly skeptical that the government’s latest assisted-dying bill, C-7, is constitutional. He’s awaiting further explanations from the government before making a final decision.

Appointed in 2019, Dalphond was not in the Senate when the chamber last debated medical assistance in dying legislation. But some senators who did live through the 2016 debate seem particularly determined not to let history repeat itself.

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Conservative Sen. Claude Carignan believes Bill C-7 violates the guarantee of equality rights in the Charter of Rights and Freedoms by specifying that people suffering solely from mental illnesses will not be allowed access to an assisted death.

He thinks the proposed two-track approach to eligibility — one set of rules for people who are near death and more restrictive rules for those who aren’t — is similarly problematic.

“I think the government has created another bill that will have to come back ? in two or three years after a court challenge,” Carignan says.

He believes the government is determined to proceed cautiously on assisted dying and is quite content to have the courts force its hand every step of the way. The trouble with that approach, in his view, is that it forces vulnerable people who are suffering unbearably from serious illnesses to spend time, money and energy fighting for their rights in court.

“That’s really tough. So I think if we want to protect those people we have to insist and say, ‘Look, don’t go there another time.”’

Fellow Conservative Sen. Pierre-Hugues Boisvenu is hopeful the Senate will propose, and the government will agree, to a compromise this time: amend the bill to remove the mental illness exclusion but give the government one or two years to come up with guidelines and safeguards before that part of the law goes into force.

He said that could “be a good compromise” that would avoid a potential standoff between the Senate and the government over the issue.

Dalphond is inclined to support such a compromise because it would force the government to act on the issue, rather than leave it to be discussed, possibly without resolution, during a promised parliamentary review. That review must grapple with other thorny matters, such as whether to allow advance consent for assisted death, as well as access to the procedure for mature minors.
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