Column: High court gives federal parties easy way out

Don’t hold your breath for a replay of the divisive abortion and same-sex marriage political fights over doctor-assisted suicide.

By the sounds of it, the parliamentary war over the right of gravely ill Canadians to medically assisted suicide that the top court affirmed in a unanimous ruling on Friday could be over before it has even started.

None of Canada’s federal parties has ever championed the cause of legalizing doctor-assisted death. But that does not mean any of them is spoiling for a fight against it – especially against the backdrop of an imminent election.

This is an issue that the Conservatives, the NDP and the Liberals were all content to leave alone for the better part of a decade. Now the Supreme Court is forcing them to either stop hiding behind its judicial skirts and take a stand or else move in tandem with its ruling.

In fact the ruling offers the federal parties the next best thing to the non-debate they so craved, in the shape of an easy exit.

The first question Stephen Harper, Thomas Mulcair and Justin Trudeau have to answer in the wake of Fridayís ruling is a straightforward one.

Would any of them – as prime minister – ask Parliament to suspend the Charter rights of Canadians so as to continue to make it a crime for a physician to assist a gravely ill patient who wanted to die? Based on the recent past, but also on the public mood, the answer will be no, even for the Harper Conservatives.

Brian Mulroney’s government grappled with the same question after the court struck down the Criminal Code restrictions on abortion in 1988 and ultimately declined to go that route.

Harper was in power for the last definitive chapter of the debate over same-sex marriage. He had the option to ask Parliament to use the notwithstanding clause of the Constitution to maintain the heterosexual definition of marriage. He similarly took a pass.

The notwithstanding clause is the equivalent of a nuclear bomb in Canada’s constitutional arsenal. No federal government has ever used it for fear of negative repercussions on its own standing in public opinion. (It also must be revoted every five years.)

The political risks of blocking the court-validated constitutional right to doctor-assisted suicide are higher than moving against abortion and same-sex marriage rights would have been.

Both of those issues polarized public opinion. They inspired more ambivalence than enthusiasm in many Canadians.

But, in this case, polls show that a strong majority of voters support the notion of having more individual control over their end-of-life care.

By declining to ask Parliament to overrule the Supreme Court, the federal parties would, for all intents and purposes, be accepting the principle of medically assisted suicide. That core issue would be put to rest without a fight in the Commons.

That does not mean there would not be a debate but it would centre on the modalities of applying the ruling. And on that score, the federal parties would all be joining a discussion that is already in progress.

It is the constitutional prerogative of the provinces to set health policy. They have the legal obligation to adopt end-of-life procedures that reflect Friday’s ruling.

At least one of them did not wait on the federal government or the top court to include medically assisted death in its protocol.

The bill Quebec passed into law last spring garnered all-party support in a free vote in the national assembly. Eighty per cent of the MNAs voted for it. It will come into effect at the end of the year.

Meanwhile, on Parliament Hill, Conservative Manitoba MP Steven Fletcher has already drafted two private members bill that mirror many of Fridayís court findings.

And then last summer the Canadian Medical Association softened its rules on doctor-assisted suicide. The vote on that resolution carried with 91 per cent support.

When all is said and done the stable whose doors the Supreme Court opened wide on Friday is one from which the horses had already bolted. Where those horses lead, Parliament will eventually have no choice but to follow.

Chantal HÈbert is a national affairs writer. Her column appears Tuesday, Thursday and Saturday.

Copyright 2015 – Torstar Syndication Services

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