by Tim Harper
This country’s highest court ultimately gave Parliamentarians 16 months to craft legislation on assisted dying. That apparently wasn’t enough.
Missing the court-imposed June 6 deadline will not plunge this nation into some type of chaotic constitutional abyss, but the past 16 months leading to that deadline have taught us a lot about our political system and the men and women who represent us. It tells us a lot about the perils of fixed election dates, a move to remove partisanship from the Senate, the management of the legislative agenda by a rookie government – but most of all it tells us a lot about the timidity of our elected representatives.
When the court released its decision Feb. 6, 2015, the justice minister of the day, Peter MacKay, set the tone with a promise to look at the decision “carefully, thoughtfully.”
In fact, MacKay was engaging in poli-speak for inaction. A Parliament that had already fallen well behind public opinion on assisted dying was now handed a historic court ruling and didn’t want to touch it in an election year.
It fell to Liberal Leader Justin Trudeau, then at the helm of the third party, to call for an all-party committee to begin work on the issue. Trudeau, prophetically, said a year did not seem adequate to write legislation when Quebec took more than four years, but warned, “if we do nothing, … Canada will find itself without any laws governing physician-assisted death. That kind of legislative vacuum serves no
one – not people who are suffering, not their anxious family members, not the compassionate physicians who offer them care.” But the Stephen Harper Conservatives, with an eye to that autumn’s election,
believed national debate held no upside and did essentially nothing for five months before MacKay appointed a three-member panel.
The panel was put in place to punt the issue and its work ended a couple of weeks later when the election was called.
The Trudeau Liberals inherited the file and a deadline of barely 90 days (including a Christmas break) when the cabinet was formally installed in November. It asked the court for a six-month extension, but was given four months.
But the work of a joint Commons-Senate committee was done in warp speed, its work was largely ignored and the Liberal push to meet the deadline meant a parliamentary committee unwilling to accept substantial amendments. A bill that comes down the middle on the question, without fully responding to the court decision, led to parliamentary skirmishes over time limits on debate, opposition obstruction, a physical skirmish in the House and a deadline drifting away.
But this saga actually goes back to January 2014, when Trudeau expelled all Liberal senators from the party caucus and declared them independent, a first step in changing the rules of the Upper Chamber.
The Senate is a much more independent place under a process started by Trudeau, but also more unpredictable. The days of a majority government handing over its legislation for a rubber stamp by a majority in the Senate are over.
This Senate has already sent a report back to the Commons, saying the Liberal bill should be amended to allow advance directives from those who wish assistance in dying and are still able to let their wishes be known.
When the bill comes back to the Senate, independent Liberal James Cowan will push for an amendment broadening restrictions on eligibility. So what happens on June 6?
The Supreme Court has laid out criteria allowing assisted death for competent adults who provide clear consent, are enduring “intolerable suffering” and have a “grievous or irremediable” medical condition.
There will be no rush by doctors to help assist the death of patients after June 6. Without a federal law, most would probably be hesitant to act with legislation looming.
The B.C. Civil Liberties Association says every provincial medical regulator has issued “detailed, comprehensive” guidelines for doctors under the high court ruling. Doctors’ conscientious objection rights are protected and, under provincial guidelines, two doctors are required to confirm the patient’s eligibility and consent.
The real danger may lie in future court challenges – if assisted deaths are allowed under the Supreme Court wording that would be denied under the federal legislation, the government will have a problem.
We shouldn’t be here after 16 months. Canadians deserved better. They deserve a better law.
Don’t blame the courts. Blame our representatives who acted like lazy university students kicking the homework down the road under the Conservatives, then crammed during an all-nighter under the Liberals.
Tim Harper is a national affairs writer. His column appears Monday, Wednesday and Friday.
Copyright 2016 – Torstar Syndication Services