Senators wonder if new assisted dying is constitutional
Joan Bryden
The Canadian Press
The Canadian Press
(Ottawa) Senators are convinced that the new bill on assisted dying is unconstitutional. They wonder how far they should go to protect the rights of Canadians who want access to medical assistance in dying.
All legislation must be approved by both Houses of Parliament. The Senate can outright reject a bill, although this has rarely happened.
If the Senate amends a bill, it is referred to the House of Commons, which then decides whether to accept or reject the changes.
We can then witness a legislative back and forth.
In practice, however, because senators are not elected, they generally accept the will of the Commons,
as they did with the 2016 assisted dying bill.
But some senators argue that the Upper House must stand firm if it judges basic constitutional rights to be at stake.
"If this is a very clear violation of a constitutional right, I think we have the right, even the moral obligation, to stand by our position and insist [on the amendment]. Said Senator Pierre Dalphond, a former judge of the Quebec Court of Appeal
who sits with the Progressive Group of the Senate.
Mr. Dalphond is very skeptical about the constitutionality of the government's latest assisted dying bill, Bill C-7. He is awaiting further explanations from the government before making a final decision.
Appointed in 2019, Mr Dalphond was not in the Senate when he last debated medical assistance. But some senators who lived through the 2016 debate seem particularly determined not to let history repeat itself.
In 2016, senators warned the government that the then bill was unconstitutional. They predicted it would be struck down by the courts.
This was the case when the near-death provision was overturned in a decision of the Superior Court of Quebec in September 2019.
Conservative Senator Claude Carignan believes that Bill C-7 violates the guarantee of equality rights in the Charter of Rights and Freedoms because people suffering only from mental illness will not have access to health assistance. dead.
He believes the proposed two-pronged approach to eligibility - a set of rules for those near death
and more restrictive rules for those who are not - also poses problems.
"The government has created another bill that will have to come back ... in two or three years after a legal challenge," predicts Mr. Carignan.
He said the government is determined to act with caution when it comes to assisted dying and is very happy that the courts are laying their hands on it every step of the way. The problem with such an approach, in his view, is that it forces vulnerable people who suffer unbearably severe illnesses to spend time, money and energy in fighting for their rights in front of courts.
“It's really difficult. If we want to protect these people, we have to insist and say, “Look, don't go another time.” "
Conservative Senator Pierre-Hugues Boisvenu hopes the Senate will propose - and the government will accept - a compromise: amend the bill to remove the exclusion of mental illness, but give the government one or two years to develop guidelines
and guarantees before the entry into force of this part of the law.
He said it could "be a good compromise" that would avoid a potential deadlock between the Senate and the government on the issue.
Mr. Dalphond is inclined to support such a compromise because it would force the government to act on the issue, rather than allowing it to be discussed, perhaps without resolution, during a parliamentary review. This review must address other thorny issues, such as prior authorization of consent to assisted dying, as well as access to the procedure for mature minors.
“We may have an opportunity to turn things around now. Why wait another, two, three years? People will suffer during this time. "
The make-up of the Senate has changed dramatically over the past four years, so it is not yet possible to determine whether the current generation of Senators will go as far - or further - than Senators did in 2016 to protect citizens. rights guaranteed by the Charter. There are certainly many senators who are passionately opposed, on moral grounds, to any expanded access to assisted dying,
and particularly opposed to extending it to people with only mental illness.
But senators with extensive legal experience - both veterans like Mr. Carignan and more recently appointees like Mr. Dalphond - who summoned ministers last week to committee hearings on the bill all put question its constitutionality.
Most recently appointed Senator Brent Cotter, a distinguished legal ethicist and former senior Saskatchewan official, asked Justice Minister David Lametti if he believes senators have a duty to ensure that legislation is constitutionally valid .
Mr. Lametti did not answer. Mr. Cotter acknowledges that this is an issue he is struggling with.
"What's good about the Senate is that, on the one hand, I think we need to advance our point of view on the basis of principle and we have a lot more luxury to do so in a less partisan Senate. , argues Mr. Cotter, member of the Group of Independent Senators. And on constitutionality, it is quite possible that senators must be firm. But at the same time, I don't think we have the right to exaggerate because we are appointed,
we are not elected. We must be respectful of the electoral process. "
If the Senate amends a bill, it is referred to the House of Commons, which then decides whether to accept or reject the changes.
We can then witness a legislative back and forth.
In practice, however, because senators are not elected, they generally accept the will of the Commons,
as they did with the 2016 assisted dying bill.
But some senators argue that the Upper House must stand firm if it judges basic constitutional rights to be at stake.
"If this is a very clear violation of a constitutional right, I think we have the right, even the moral obligation, to stand by our position and insist [on the amendment]. Said Senator Pierre Dalphond, a former judge of the Quebec Court of Appeal
who sits with the Progressive Group of the Senate.
Mr. Dalphond is very skeptical about the constitutionality of the government's latest assisted dying bill, Bill C-7. He is awaiting further explanations from the government before making a final decision.
Appointed in 2019, Mr Dalphond was not in the Senate when he last debated medical assistance. But some senators who lived through the 2016 debate seem particularly determined not to let history repeat itself.
In 2016, senators warned the government that the then bill was unconstitutional. They predicted it would be struck down by the courts.
This was the case when the near-death provision was overturned in a decision of the Superior Court of Quebec in September 2019.
Conservative Senator Claude Carignan believes that Bill C-7 violates the guarantee of equality rights in the Charter of Rights and Freedoms because people suffering only from mental illness will not have access to health assistance. dead.
He believes the proposed two-pronged approach to eligibility - a set of rules for those near death
and more restrictive rules for those who are not - also poses problems.
"The government has created another bill that will have to come back ... in two or three years after a legal challenge," predicts Mr. Carignan.
He said the government is determined to act with caution when it comes to assisted dying and is very happy that the courts are laying their hands on it every step of the way. The problem with such an approach, in his view, is that it forces vulnerable people who suffer unbearably severe illnesses to spend time, money and energy in fighting for their rights in front of courts.
“It's really difficult. If we want to protect these people, we have to insist and say, “Look, don't go another time.” "
Conservative Senator Pierre-Hugues Boisvenu hopes the Senate will propose - and the government will accept - a compromise: amend the bill to remove the exclusion of mental illness, but give the government one or two years to develop guidelines
and guarantees before the entry into force of this part of the law.
He said it could "be a good compromise" that would avoid a potential deadlock between the Senate and the government on the issue.
Mr. Dalphond is inclined to support such a compromise because it would force the government to act on the issue, rather than allowing it to be discussed, perhaps without resolution, during a parliamentary review. This review must address other thorny issues, such as prior authorization of consent to assisted dying, as well as access to the procedure for mature minors.
“We may have an opportunity to turn things around now. Why wait another, two, three years? People will suffer during this time. "
The make-up of the Senate has changed dramatically over the past four years, so it is not yet possible to determine whether the current generation of Senators will go as far - or further - than Senators did in 2016 to protect citizens. rights guaranteed by the Charter. There are certainly many senators who are passionately opposed, on moral grounds, to any expanded access to assisted dying,
and particularly opposed to extending it to people with only mental illness.
But senators with extensive legal experience - both veterans like Mr. Carignan and more recently appointees like Mr. Dalphond - who summoned ministers last week to committee hearings on the bill all put question its constitutionality.
Most recently appointed Senator Brent Cotter, a distinguished legal ethicist and former senior Saskatchewan official, asked Justice Minister David Lametti if he believes senators have a duty to ensure that legislation is constitutionally valid .
Mr. Lametti did not answer. Mr. Cotter acknowledges that this is an issue he is struggling with.
"What's good about the Senate is that, on the one hand, I think we need to advance our point of view on the basis of principle and we have a lot more luxury to do so in a less partisan Senate. , argues Mr. Cotter, member of the Group of Independent Senators. And on constitutionality, it is quite possible that senators must be firm. But at the same time, I don't think we have the right to exaggerate because we are appointed,
we are not elected. We must be respectful of the electoral process. "