The Senate takes on the House over assisted dying

The old concept of “sober second thought” is being stretched

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Macleans Magazine’s Ottawa and Montreal bureau head shots at Third Floor York studio in Ottawa December 12, 2013.
Photo by Blair Gable

(Sean Kilpatrick/CP)
(Sean Kilpatrick/CP)

The Canadian Senate can be a beguilingly old-fashioned place. During their closely watched deliberations over doctor-assisted suicide, senators have been speaking so painstakingly that the absence of TV cameras in the Red Chamber only seems polite. Such an intrusion wouldn’t be in keeping with the mood. (Gaslight would be nice.) Compared with the 338 MPs who pack the House for major votes, the full contingent of 86 senators, with 19 seats vacant just now, can gather without upsetting the clubby atmosphere of the place. Many observers, and quite a few senators, have noted that the classic description of the Senate’s job—“sober second thought”—has rarely been showcased more appealingly than during this debate.

But the sound of voices not being raised may have lulled Canadians into missing what’s really going on. The senators grappled civilly with what to do about Bill C-14, the controversial legislation passed recently in the House, in response to last year’s landmark Supreme Court of Canada ruling, the so-called Carter decision, which said some suffering patients must be allowed medical help to end their lives. Most senators decided the government didn’t do a good enough job drafting the bill, and that elected MPs didn’t scrutinize it thoroughly enough. They set about putting their own stamp on the law. They passed it with major amendments late in the evening on June 15, sending it back to the House.

Some argue that’s what sober second thought should be all about. But overhauling legislation to this extent hasn’t been the norm. The Canadian Encyclopedia offers this sketch of how the Senate typically treats bills sent its way by the House to be passed into law: “The amendments [the Senate] does make to bills now are almost always related to drafting—to clarify, simplify and tidy proposed legislation.” Senators are hardly limiting themselves to tidying Bill C-14, though, as they debate sweeping changes. “I think what is happening today is quite dramatic and historic,” says David Smith, a University of Saskatchewan professor emeritus of political science and a leading expert on the Senate. “There is no point of reference by which to measure or assess what’s happening, because we’ve never had this before.”

The new conditions Smith sees arrived in stages, starting when Trudeau banished Liberal senators from his caucus back in early 2014. That freed them to act outside his authority. Next came a Supreme Court ruling rejecting then-prime minister Stephen Harper’s bid to reform the Senate—imposing term limits and a way of electing senators—without seeking provincial consent. In that decision, the court also affirmed the upper chamber’s role, saying the architects of Canada’s federal system wanted senators to stand outside “a partisan political arena that required unremitting consideration of short-term political objectives.” In keeping with that vision, Trudeau, after winning last fall’s election, set up an advisory board to recommend non-partisans he would then name to fill Senate vacancies.

So the Senate is starting to operate outside the constraints that historically saw the upper chamber follow the same party lines as the House most of the time. This radical change took root as the Senate weathered the worst stretch of bad publicity in its checkered history, after issues surrounding Sen. Mike Duffy’s expenses exploded into the news in 2013. By the time Duffy was cleared of charges in an Ottawa courtroom this spring, senators badly wanted to turn the page—and the key figures in their bid for respectability are models of decorum. Sen. James Cowan, 74, the Halifax lawyer who leads the Senate Liberals, exudes old-school civility. As for Sen. Claude Carignan, 51, the Montreal lawyer who leads Conservative senators, it’s hard to connect his calming manner with the hard-edged Tory partisanship of the Harper years.

Still, what these senators are doing is far more assertive than their style suggests. At the first chance last week, the Senate voted to pass a fundamental amendment to Bill C-14, a change that would broaden eligibility for doctor-assisted dying from only patients whose death is “reasonably foreseeable” to any whose suffering is beyond help, no matter how many months or years away natural death might be. Cowan is among the senators who argue that the government made a fundamental error in trying to prevent suffering individuals whose natural deaths are not imminent from getting medical help in ending their lives.

He cites the formidable constitutional lawyer Peter Hogg among experts who say the government’s bid to narrow eligibility to individuals near death will not survive the inevitable court challenge. “I think we’ve fixed that now,” Cowan says of the Senate’s proposed amendment. “So I think the bill is in good shape.” Asked what he’ll do if the government rejects that amendment when the Senate sends the legislation back to the House, likely with a raft of other proposed changes, Cowan struck a note of defiance. “I’m not going to vote for a bill that I think is unconstitutional,” he says. “And I believe that narrowing the bill below what Carter said makes the bill unconstitutional.”

So far, though, the Liberal government does not sound like it is in a mood to accept the Senate’s rewrite of the bill. Justice Minister Jody Wilson-Raybould said the proposed amendment threatens to undo a careful balance the government tried to strike. Her reaction came as no surprise. Appearing before a Senate committee last month, she addressed in advance the complaint that her bill might be unconstitutional because it added the condition that death be “reasonably foreseeable” for doctor-assisted suicide to be considered. “The Carter decision told us that the absolute prohibition against assistance in dying was unconstitutional, but it did not tell us what a new law should look like,” Wilson-Raybould said. “A new law must respect the legal principles set out in Carter, but it does not have to exactly mirror the wording from the court to be constitutional.”

The clash over the bill is reviving old arguments about the proper function of an appointed upper chamber, set against a democratically elected House. On this point, historians often quote Sir John A. MacDonald, who said during the debate about establishing the Senate in the first place that its value would be in “calmly considering the legislation initiated by the popular branch, but it will never set itself in opposition against the deliberate and understood wishes of the people.”

The problem is that there is no written rule book that spells out when the Senate’s calm consideration of a bill crosses the line into undemocratic obstructionism. Senators don’t often block or seriously delay major legislation, but they have done so in the past on issues as significant as the GST, free trade, abortion and climate change. With party ties to the House now severed or, at least, much relaxed, and with Trudeau appointing only independent senators, the Senate might well feel entitled to flex its muscles more often. Conservative Sen. Diane Bellemare argues that means guidelines for responsible behaviour by senators must be set down more clearly.

Bellemare, a Montreal economist appointed to the Senate by Harper in 2012, is proposing a motion to outline how senators should review bills passed by the House. Her motion specifies that they should examine only certain fundamental questions, like making sure legislation is constitutional, falls under federal jurisdiction and doesn’t contain “obvious drafting errors.” Senators should never, she argues, reject a bill on “simple personal or partisan” grounds. “That’s why we have to bow to the decision that was made and voted on in the other chamber,” Bellemare says. “Who are we? Who are we to say what the legislation should be? I don’t think we have that legitimacy. Our role is to review.”

Even the argument made by Cowan and others that Bill C-14 is unconstitutional doesn’t strike Bellemare as strong enough to justify the Senate’s bid to rewrite the legislation. She points out that while some experts, like Hogg, see the government’s assisted-dying legislation as fundamentally flawed, others, like University of Toronto law professor Trudo Lemmens, say the bill strikes the right balance on a tricky issue. The Trudeau government clearly accepted the advice of justice department lawyers who expect the legislation to survive a court test of its constitutionality. “They are going to be responsible to the population for that bill,” Bellemare says. “We can say, ‘Be careful, this is what we think.’ But at the end of the day, we are not the government.”

Exactly when the end of the day will come in this contest of wills between the Senate and the House is far from clear. Senators were debating a raft of proposed amendments this week. After they finish voting on them all, the bill will be sent back to the House to reconsider. The government will have to decide how many, if any, of the Senate amendments to accept in a bid to make peace with the upper chamber, and then send the bill back. This raises what is sometimes called the Ping-Pong question: How many times would the Senate be justified in volleying the bill back before it must bow to the House and pass it?

Ontario Sen. Frances Lankin, one of the independent senators freshly appointed under Trudeau’s new process, says the rally should be kept very short. A former CEO of United Way Toronto, Lankin was a cabinet minister in Ontario’s NDP government back in the early 1990s, and thus brings real experience in governing. She’s taken on a lead role among independent senators on Bill C-14. Although she wouldn’t be pinned down, Lankin says she’s inclined to think the Senate should send the bill back to the House only once with amendments. After that, senators should pass it, and move on to sorting out what this episode has taught them about their job. “What we need to do, and this is an evolutionary thing, is to make sure we are sticking to our knitting,” Lankin says, and then poses a simple question that doesn’t seem to have such an obvious answer: “What is the job of the Senate?”

This article has been updated to reflect the Senate’s vote on C-14 on June 15, 2016.