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.