Senate finds justification with medically assisted dying legislation

On Wednesday night, a majority of the Senate's membership decided to amend C-14 to broaden the legal eligibility to access medical assistance in dying. By Thursday morning, this was being lamented as a transgression about the popular will.

Senate has amended C-14, renewing questions about the chamber's role and place in Parliament

The Senate chamber on Parliament Hill is shown in a May 28, 2013 photo. An arbitrator's final, binding ruling on the questionable expense claims of 14 senators is expected to be made public March 22. (Adrian Wyld/Canadian Press)

Per party tradition, NDP MPs have made periodic, and so far unsuccessful, attempts at substantially defunding the Senate by using the House of Commons' oversight of public funds to reject the upper chamber's annual appropriation. 

In the best scenario, the gambit might convert the Senate into a voluntary institution. But even still, the Senate would continue to exist. In lieu of a constitutional amendment it has to exist. Without it, Parliament would be unable to function.

For that matter, defunding, like a similar suggestion that prime ministers simply stop nominating individuals for appointment to the Senate, would likely be found unconstitutional. As the Supreme Court ruled in 2014, fundamental change requires provincial consent. Outright abolition would require the unanimous agreement of all provincial legislatures.

So the Senate continues to exist as an appointed chamber and will continue to exist as such unless or until a federal government is willing to pursue a constitutional amendment. Which is to say, the Senate, in its current form, is not going anywhere for the foreseeable future.

And so long as the Senate is to exist, the question before us is this: What precisely should the Senate be expected to do with its time?

Have MPs had enough time to debate the assisted dying legislation? 11:57

'An unelected Senate changing the laws'

On Wednesday night, a majority of the Senate's membership decided to amend C-14 to broaden the legal eligibility to access medical assistance in dying.

By Thursday morning, this was being lamented as a transgression against the popular will.

"We have the courts making laws in this country and now we have an unelected Senate changing the laws of an elected House," interim Conservative leader Rona Ambrose remarked to reporters.

The Senate's dilemma is fundamental: act to amend the legislation it is charged with reviewing and it risks seeming undemocratic, fail to ever act and it can fairly be accused of lacking utility.

But then the country faces its own less-than-ideal choice: embark on nationwide constitutional negotiations or live with an appointed upper chamber at the federal level.

Of course, if one supports the changes made by the Senate, it might be easier to accept the upper chamber's intervention. And, if one believes the Senate's changes are necessary to bring the bill into compliance with the precedent established by the Supreme Court's ruling in Carter v. Canada, one might also wonder why the duly elected members of the House of Commons were unable or unwilling to do likewise.

Opposite that potential indictment of the House, the Senate might claim to have demonstrated its potential usefulness and Justin Trudeau might try to cite this as evidence that his attempts to create an independent chamber are already producing meaningful results.

Strictly speaking, mind you, the Senate has not quite overruled the House just yet. When the amended bill returns to the Commons, MPs will be free to disagree with the Senate's amendments. And if a majority of MPs vote against those amendments, the Senate will have to decide how strenuously it wishes to insist on its changes.

A prolonged standoff might test the Senate's claim to legitimacy. But insofar as the House of Commons will ultimately have to agree to whatever passes Parliament — and so long as the Senate does not outright defeat the bill — the popular will might ultimately prevail regardless.

Health Minister Jane Philpott testifies about the federal government's controversial bill on assisted dying before the entire Senate in Ottawa, Wednesday, June 1, 2016. (Adrian Wyld/Canadian Press)

A possible hint of what is to come

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. (The Senate is also presently fussing over another government bill.)

It would not take much effort for the Senate to be more obviously assertive than it was over the last five years. But there are various precedents for senatorial intervention. Between 2000 and 2011, for instance, 24 government bills were amended. 

And then there is the example of the House of Lords. The upper chamber in the United Kingdom — according to Meg Russell, a scholar who testified before a Senate committee this spring — has passed more than 500 amendments that defied the government's will since 1999. About half of those, Russell explained, were subsequently accepted.

In Britain, there also lingers something called the Salisbury Doctrine, so named for the third and fifth marquesses of Salisbury. The convention holds that the Lords will not reject any bill that implements a commitment outlined in the governing party's election platform.

Senator Joan Fraser, a Liberal and former newspaper editor, has cited Salisbury as guiding her judgment. "We may perceive technical flaws in the legislation sent to us and legitimately refer those technical flaws back for consideration of amendments that we make," she told the Senate in 2014, "but we won't stand in the way of the clearly expressed wishes of the people as expressed in an election when the people knew what they were voting for."

Minister of Justice and Attorney General of Canada Jody Wilson-Raybould participates in a committee of the whole in the Senate, Wednesday June 1, 2016. (Adrian Wyld/Canadian Press)

A Salisbury Senate?

in this case, a new law on medical assistance in dying was not spelled out in the Liberal platform. But a general acceptance of a Salisbury-like principle might restrain the Senate from getting carried away in the future.

Of course, the Senate's actions would still be subject to an academic debate about the purview of an appointed chamber in a functioning democracy. (In the abstract, it is difficult to imagine that any democracy starting from scratch today would put a chamber of unelected appointees in the way of legislation passed by the elected representatives of the people.) And any intervention that goes against public opinion could risk emboldening reformers and abolitionists.

But the constitution is stubbornly difficult to ignore.

And so, as long as there are individuals with the designation of senator and there is a handsomely appointed chamber available for meetings and some expense is being paid to keep the chamber's lights on, it is tempting to think the institution should be put to some actual use.

About the Author

Aaron Wherry

Parliament Hill Bureau

Aaron Wherry has covered Parliament Hill since 2007 and has written for Maclean's, the National Post and the Globe and Mail.