On assisted dying, the Senate is a necessary evil

Sometimes, like in the case of Bill C-14, the House of Commons gets things wrong—and the red chamber proves its worth

Charles Lamoureux cleans the Senate chamber on Parliament Hill in Ottawa February 25, 2010. Canada's Prime Minister Stephen Harper will outline his government's agenda in the Speech from the Throne on March 3. (Blair Gable/Reuters)

Charles Lamoureux cleans the Senate chamber on Parliament Hill in Ottawa February 25, 2010. Canada’s Prime Minister Stephen Harper will outline his government’s agenda in the Speech from the Throne on March 3. (Blair Gable/Reuters)

Canadian senators sit in a lavish room coloured bordello red. Much like bordellos, the Senate doesn’t usually allow cameras to film the goings-on within its walls—for reasons of tradition, shame or discretion, no one is quite sure.

The analogy is further fitting for many pundits and politicians alike. After all, senators rise to the top not by election but by connection, appointed on the advice of the Prime Minister. Too often, they owe their position to slavish patronage to the government in power.

It is understandable, then, that some of these politicians and pundits would react to the Senate’s roadblocking of the government’s assisted-dying legislation. Long story short: in response to a 2015 Supreme Court decision striking down Canada’s existing law prohibiting medically assisted death, the current government introduced Bill C-14.

The Senate took umbrage with certain aspects of C-14, namely its provision that assisted dying be limited to those whose natural death has become “reasonably foreseeable.” Essentially, this means that those suffering, say, unbearable chronic pain must continue to do so until they are a bit closer to death. Only then will their doctor merit protection from the law. A majority of senators pointed out how this might not satisfy the precepts outlined in the Supreme Court decision—and would be ripe for a Charter challenge as a result.

Interim Conservative leader Rona Ambrose aired her ire toward the upper chamber, charging that “an unelected Senate [was] changing the laws of an elected house.” Columnist Andrew Coyne went further, saying the “activist” Senate’s intervention suggests Canada is “something less than a democracy.” Fellow columnist Michael Den Tandt warned of the legislative chaos to come from “an unfettered, unelected upper chamber” relieved of party control by Justin Trudeau’s haphazard Senate reform.

There is truth to every piece of the above invective. Certainly, the fact that there is no longer any (official) government control over senators—a pillar of Trudeau’s reform—is cause for concern. Yet if intervening in the process of crafting legislation is “activism” (it isn’t), then the Senate has been activist for much of its existence. For example: were it not for the Senate, women wouldn’t have access to abortions in this country.

The Senate has amended 160 pieces of legislation since 1960. Most of these were for proposed laws on subjects that would put you to sleep—wheat boards and customs tarriffs and the like. In 1989, however, the Senate perked up to the task of considering a bill that would have criminalized abortion unless the woman’s life or health was in danger. As well, any doctor performing an abortion outside these parameters faced two years in jail.

Introduced by the Mulroney government, Bill C-43 sought to address a Surpreme Court decision overtuning a section of the Criminal Code that severely limited abortion access. The proposed law was the brainchild of Conservative health minister Jake Epp, a devout Christian who believed that life begins at conception. There were 19 other people at the table with Epp, and exactly one of them was a woman. Barbara McDougall wanted fewer constraints on abortion access. She didn’t get her wish. The bill passed 140 to 131.

Today, women would be ostracized and abortion doctors would still be thrown in jail were it not for that unelected, unaccountable and patronage-drenched redoubt known as the Canadian Senate. Instead, the bill went to the Senate for approval, and senators were split 43-43 on whether to do so. A tie means the bill fails, as Senate rules dictate. Though the issue of abortion remains a legal morass—it isn’t legal, it’s just not illegal—that hamstrung Senate vote has meant that this country is among the most progressive when it comes to reproductive rights.

And there are echoes of the abortion issue in the current debate over medically assisted dying. In both cases, Parliament reacted to a Supreme Court ruling by drafting legislation that stood a strong chance of failing a Charter test. In the case of abortion, the government reacted to a decision against restricting access to abortion by making it only slightly less inaccessible.

The Trudeau government has done much the same for medically assisted dying. Chronic, terminal pain isn’t only endured by those close to death. Yet the current legislation prioritizes that pain, and makes relief from it legal only if you’re about to die anyway. Beyond being ethically dubious, “The Supreme Court was very clear about not including criteria of being at the end of your life, or being terminally ill,” Sen. Serge Joyal told me recently. Both the Canadian and Quebec bar associations as well as noted constitutional law scholar Peter Hogg concur.

In too many instances, the Senate’s reputation is as an anteroom for partisan hacks awaiting a swishy pension. Yet the extravagances of some—okay, many—shouldn’t overshadow the the institution itself, however infrequently it demonstrates its importance. That’s the nagging thing about necessary evils: sometimes they come in handy.


On assisted dying, the Senate is a necessary evil

  1. If the Senate actually boots this ‘near-death’ insanity….then I’ll support them as a govt body

    AND dear Rona….kindly note that the GG and the Queen are unelected, so there is no point in getting sniffy about Senators

    • The difference being that the Queen and the GG are not involved in the making of the laws that govern Canadians. Indeed, the Queen is a figurehead, and the GG is almost, but not quite, a figurehead.

      The problem is that the Senate is not accountable to the people it is involved with governing. As such, IMO the Senate should not be able to override the will of the HoC, the members of which are accountable to Canadians. So, if we are to be stuck with an anachronistic unelected and unaccountable Senate, then its power should be severely limited. It should have the power to delay legislation, but not block it indefinitely.

      E.g. the Senate would be able to delay legislation for up to 6 months, but no more. 6 months would give people enough time to contact their MPs and organize against the legislation if indeed the legislation is that bad; and MPs would ignore this at their own peril.

      And, if, as in the case of the assisted dying legislation, the Senate believes a piece of legislation is unconstitutional, it should have the power to have it referred to the Supreme Court for a ruling.

      IMO having an unelected and unaccountable Senate that has the ability to deadlock (and thus kill) legislation is an untenable situation to be in in the 21st century.

      • The US has an elected senate…..and the US is almost always in gridlock

        Our unelected senate has usually been a rubber stamp……so if they are actually functioning as ‘sober second thought’……it’s a good thing

        • Absolutely agree- the new senators have shown that they are not just ‘badmen’ for a party. We need people who take their positions seriously.
          An elected senate would be a disaster- and how would we ever pick a voting method anyway!

          • The only thing worse than an elected Senate with teeth (and I am *not* advocating for this), is an unelected and unaccountable Senate with teeth. At least the former can be held in check once every 4 or so years by citizens. The latter can do whatever it wants with total impunity.

            IMO applauding the Senate because in this one instance it is acting in support of one’s position is shortsighted. There may be any number of instances in the future in which it is not only not supporting one’s particular position, but is in fact acting against the wishes of a clear majority of citizens. And because it is unaccountable, it can do so without concern for consequences.

            I’ll reiterate my favoured approach for a Senate:
            – It can suggest amendments to legislation.
            – It can delay legislation for up to, say, 6 months, but cannot kill legislation.
            – It can refer legislation to the SCC.
            That’s all the power it should have, elected or not elected. We have an elected HoC to make laws, and we have a Supreme Court to ensure those laws are consitutional – we don’t need a Senate operating outside of those confines.

            The Senate in it’s current form is an anachronism which has no place in a modern democracy. And now that the Senate has been unshackled it has the potential to be hazardous.

        • This ‘sober second thought’ thing with an unelected but appointed Senate is beginning to make a lot of sense now, especially with the stances the Queen and the GG have taken on the oppressed of society, and makes the abortion and assisted dying issues clearer on the fronts of those who are in an oppressed position.

    • The problem I see with this is that if Justin Trudeau sticks to his guns, then what. How many times can the bill flip back and forth between the two institutions before we have a deadlock? The HOC should have taken the advice that they requested from physicians, committees and the others they consulted. It seems though that they suggested some physicians wanted to play God and kill people a matter of course. Maybe that is why they felt they really needed to come out with a bill that restricted access to the service. At any rate, they did a pretty poor job of it and give the Libs majority, they can the credit for passing it. Now we have Mike Duffy and Pamela Wallin and perhaps Mr. Brazeau soon to be writing our legislation. What a great to look forward to.

      • They are not ‘writing ” legislation- they are suggesting amendments. The government can always pass the legislation.- and only they can.

  2. “Today, women would be ostracized and abortion doctors would still be thrown in jail were it not for that unelected, unaccountable and patronage-drenched redoubt known as the Canadian Senate.”

    I can’t really believe that you believe that if it weren’t for the Senate, Canada, along with Ireland, would in 2016 be one of the only 2 liberal democracies in the world where some form of abortion on demand was not legal.
    Almost certainly (with about 99.999% certainty) one of several things would have happened by now if the Senate had not in effect killed the proposed 1989 abortion law:
    – The Supreme Court would have immediately ruled the law unconstitutional.
    – A later government would have proposed a new liberal law that permitted some form of abortion on demand, and a later Senate would have approved it.
    – Assuming the Supreme Court ruled the 1989 law constitutional, it would have later reversed itself as it did with assisted dying (recall the 1993 Sue Rodriguez SCC ruling), thus allowing some form of abortion on demand.

    Canada is one of the most socially liberal countries in the world and it is inconceivable to believe that without the Senate, Canada would not now have an abortion situation that is at least as permissive as that of the other liberal democracies (Ireland excepted).

  3. Perhaps what has occurred in the physician-assisted suicide bill and the abortion bill is a good indication that the federal government is not the right place to hammer out laws on medical rights. Despite what many may believe provinces have developed laws that govern mental health care and those have been successful. Also, the Supreme Court of Provinces were the first to allow patients and physicians the right to participate in physician assisted sucide in this country on a case by case basis. Already hospitals and doctors go to provincial courts to request injunctions asking for permission to discontinue life support and to do medical interventions on patients when families disagree. Why do we need a detailed legislation in place vs. one that states a that a certain number of medical professions must have given an opinion, the patient must have a directive and cannot be co-erced and must be competent and suffering. We trust physicians to do all kinds of interventions and we trust patients to give competent consents and write medical directives for the future when they cannot speak on their own behalf. Why do we need to second guess everyone now? We seem comfortable with no abortion law. Why do we feel a need to have politicians make a law that might see physicians jailed for providing compassionate patient centred services?

  4. Hi there –
    Really confusing photo caption re: Stephen Harper (?!)
    Now I will read the actual article…

    • You can tell that Macleans (like the G&M and the National Post) really really wanted Harper to win the last election.
      They just won’t give up….

  5. “… legislation that stood a strong change of failing a Charter test.”
    You might want to fix this too. ;-)

    • …and the “overtuning”… (sorry)

  6. Actually, I think Bill C-14 is a pretty good piece of legislation for this sensitive and difficult issue. Too many commentators are quick to judge that it would not survive a Charter challenge. I don’t know if that is true, or not. Many lawyers have said the Bill will survive a Charter challenge. Senator Murray Sinclair, who is a former judge, feels it meets Charter requirements and supports the Bill. The federal Minister of Justice is a lawyer and her department filled with lawyers obviously believe it responds to the Carter decision. Helping people to commit suicide is a significant policy matter that deserves caution. I do not look forward to this practice becoming commonplace, but it is coming whether I like it or not. Let’s not rush to make it so available that suicide prevention programs become meaningless.

  7. The revised Bill C-14 must include advance directives for newly diagnosed dementia patients.
    I have experienced my parent suffering through the stages of dementia. Who wants to live the
    last 2 years of their life in a vegetative state, bedridden, being spoon fed, and having your dirty
    diapers changed by caregivers. Nobody.

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