Should senators block a new law on physician-assisted dying if they think it's unconstitutional?

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      This morning, Senator Larry Campbell made some good points about Bill C-14 in an interview on CBC Radio.

      The former Vancouver mayor said that the legislation reserves physician-assisted dying only for the terminally ill. Therefore, he argued that it's far more restrictive than what was outlined in the Carter decision in the Supreme Court of Canada.

      The court upheld a trial judge's ruling that "the prohibition against physician-assisted dying violates the rights of competent adults who are suffering intolerably as a result of a grievous and irremediable medical condition".

      The court specifically ruled that this infringed on these competent adults' constitutional right to life, liberty, and security of the person.

      That's because the prohibition could force them to take their lives earlier than they might otherwise have done had they had the option of physician-assisted dying.

      Campbell pointed out that some of those with "grievous and irremediable suffering" were left off the table in Bill C-14, which was introduced by Justice Minister Jody Wilson-Raybould.

      As an example, the senator said that people with amyotrophic lateral sclerosis, a.k.a. Lou Gehrig's disease, would not be eligible.

      Vancouver Centre Liberal MP Hedy Fry registered similar objections in a commentary posted on this website yesterday. 

      Another Liberal from B.C., Senator Mobina Jaffer, has also expressed concerns in the media about Bill C-14.

      So should unelected senators, some of whom are political hacks, have the right to amend legislation if they feel it's unconstitutional?

      Campbell argued that this is his duty.

      Other Canadians may disagree, noting that it's a slippery slope when unelected people in the upper chamber thwart the will of elected parliamentarians, no matter how serious the issue might be.

      While many might agree with the principled stand taken by Campbell, how would they feel if he was blocking legislation that they agreed with?

      Consider, for instance, if the Senate decided that it was going to reject a bill granting protection under the Canadian Human Rights Code for transgender people.

      What if the senators argued that this legislation was unconstitutional and therefore must be amended? Would that be okay?

      Sober second thought is one thing. Thwarting the will of Parliament is another thing altogether.

      If the Senate takes the extreme step of blocking a bill passed by Parliament, it opens the door for Conservatives in the upper chamber to try to do this again and again.

      In fact, it's the job of the Supreme Court of Canada to determine if legislation is unconstitutional and in which ways. It appears as though Justin Trudeau's government has brought forward a bill that is offside with the Carter decision, but ultimately the court will make a determination.

      What's really going on here?

      It's left me wondering if the Liberals are playing a political game with the physician-assisted-dying legislation.

      Did Trudeau decide to bring forward a law that satisfied right-wing elements within his party? Did he want to demonstrate to the Catholic Church and evangelical Christians that he's going as far as he can to narrow people's rights?

      Is there a plan to blame unelected senators for sending Bill C-14 back to Parliament and forcing him to loosen the legislation?

      Amending the law would please many people who vote Liberal. And it would give Trudeau a plausible defence against the right wingers who don't respect people's autonomy to choose what's best for them in the face of grievous and irremediable suffering.

      In other words, are Trudeau and Wilson-Raybould playing politics with people's lives and their constitutional rights?

      I submit that unelected senators have no right in a modern democracy to block legislation. Let them comment on the bill. Let them recommend amendments for Parliament. But it's a slippery slope when appointed people who are not accountable to voters act like MPs.

      Rather, if Trudeau and Wilson-Raybould want to bring forward an unconstitutional bill, they should face the same legal consequences as their predecessors in the Conservative government.

      They should endure the humiliation of having the law struck down by the courts and then answer for this to their constituents in the next election.

      Repeatedly, the Supreme Court of Canada said "no" to the political machinations of the Harper government.

      After a while, Canadians learned that they were governed by political tyrants who didn't respect the Canadian Charter of Rights and Freedoms. As a result, the Conservatives were thrown out of office.

      If Trudeau and Wilson-Raybould are unnecessarily magnifying the suffering of people with ALS, then they should pay a political price for this.

      The bigger picture

      Trudeau is already showing early signs of being Harper Lite, notwithstanding some progressive moves, such as increasing personal income taxes imposed the rich.

      We've seen a Harperish side in his refusal to amend the way the Kinder Morgan pipeline application was evaluated, despite promising to do so.

      We've seen it in the Trudeau government's refusal to abide by the Supreme Court of Canada ruling with regard to on-reserve First Nations child-welfare funding. 

      And we've seen it in the glacial way that Trudeau is dealing with health-care transfers to the provinces, despite promising to rip up the Harper government's unfair funding formula.

      It takes time to determine whether a politician has sufficient integrity to deserve being re-elected. And it's far too early to make any decision about Trudeau. But his approach to physician-assisted dying is not likely to increase Canadians' confidence in him in this regard.

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