Don’t complain when the Senate fulfills its constitutional role: Bill C-14 as a case-study

Government ministers and opposition leaders were in a flap this last week. The Senate dared to amend Bill C-14, the bill on physician-assisted dying and strike out one of the qualifications that the House of Commons had insisted on – namely, that natural death be reasonably foreseeable. Opposition Leader Rona Ambrose stated in response on June 9, 2016:

“We have the courts making laws in this country and now we have an unelected Senate changing the laws of an elected House….”

Minister of Health Jane Philpott stated that the government was “concerned” about the amendments to a bill that “has been supported by a vote in the House of Commons”. Justice Minister Jody Wilson-Raybould called the amendment a “significant one” and said that it would “broaden the regime of medical assistance in dying in this country and we have sought to ensure that we, at every step, find the right balance that is required for such a turn in direction.”

An op-ed posted on the CBC website by Aaron Wherry on June 9, 2016 noted that this might be a hint of what may be our future – with the senators being untied from partisan politics, the Senate might actually start exercising its constitutional muscle:

But the implication could still be that this is a hint of what is to come. That amending C-14 is a particularly bold move (though the Senate’s previous blocking of legislation on abortion is something of a precedent). Or that with greater independence and less adherence to partisan allegiance, the Senate might start applying its own judgment more regularly.

Shocking? I think not. I think that this is exactly what the Senate should be doing. In my view, when the Senate considers that a bill has been poorly drafted, it should try to amend the bill so that it is better drafted. And when the Senate determines that a bill is likely unconstitutional, it should amend the bill so that it stays onside from the constitutional perspective. That is what the amendment striking out reasonable foreseeability of natural death achieves – a bill more likely to be found to be constitutional.

No less a constitutional scholar than Peter Hogg, the man who literally wrote the book on Canadian constitutional law, appear last week before the Senate legal and constitutional affairs committee. His appearance was very important. The NDP’s justice critic, Murray Rankin (no constitutional slouch himself) called the appearance a “game changer”. Mr. Hogg testified that, in his opinion, “the bill is not consistent with the constitutional parameters set out in the Carter reasons”. Specifically, he noted that, under the bill, medically assistance in dying would no longer be available to those who were not close to death, even if they were suffering grievously and irremediably in circumstances that they find intolerable. In Carter, the Supreme Court found that, persons who fell under that category had a constitutional right to medical assistance in dying. If Bill C-14 passed in the form proposed by the House of Commons, Professor Hogg noted that it was a near certainty that someone who met the Carter criteria but who was not near death would challenge the legislation. In Hogg`s words, “What judge would not strike down the end-of-life provisions?”

With this sort of constitutional pedigree giving this clear constitutional advice, the Senate chose to act: it struck the end-of-life provisions by way of amendment.

The Supreme Court had held in its 2014 decision, Reference re Senate Reform, 2014 SCC 32, that the Senate is supposed to be an appointed body where it plays a role of “sober second thought” [para. 70], independent of “the electoral process to which members of the House of Commons are subject” [para. 57] and removed from “a partisan political arena that required unremitting consideration of short-term political objectives” [para. 57].

Surely, one of the principal factors the Senate must consider when it engages in this second sober thought is whether a bill is likely constitutional or not. I note that, in this case, not only did the Senate have the benefit of the unequivocal opinion of the esteemed constitutional scholar Peter Hogg but it also had two judicial rulings, one from the Court of Appeal of Alberta and the other from the Ontario Supreme Court of Justice, in which the learned justices noted that Carter did not require that a person applying for medical assistance in death be near the end of his or her natural life. In the case of the Alberta Court of Appeal, the Attorney General of Canada made vigorous submissions to support a finding that Carter implicitly required that a person seeking to fall within the Carter 2016 exemption be near the end of life – submissions which the Court squarely rebuffed.

I think that Mr. Wherry is correct when he says that we should expect more of this sort of behaviour by the Senate – that as it becomes more comfortable with its non-partisan role of second, sober thought, it will feel at ease with amending bills from the House of Commons or even of refusing to approve them. I do not think that this is necessarily a bad thing. If the House of Commons, as “democratically elected” as it may be, chooses to enact poorly drafted legislation or legislation that, on a preponderance of legal opinion, is likely constitutionally flawed, then the House of Commons and Canadians at large should expect senators to fulfill their constitutional role. I would argue that, in such cases, Senators have a constitutional duty to propose amendments to such bills to make them compliant with the Constitution. Failure to do so would be to fail to comply with their constitutional role.

If we do not like having an appointed, non-partisan upper body of second, sober thought, then we need to amend the Constitution. Until then, so long as we remain a country where rule of law is important and where the Constitution is the supreme law of the land, I for one am glad that the senators are increasing complying with their constitutional role and duties.

 

I remain

 

Constitutionally yours

 

Arthur Grant

 

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