Bill C-7 – Motion for Non-Insistence Upon Senate Amendments and Concurrence in Commons Amendments – Sen. Dalphond

By: The Hon. Pierre Dalphond

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East and West block of Parliament, Ottawa

Hon. Pierre J. Dalphond: Honourable senators, we are asked today by Senator Gold, the Government Representative in the Senate, to accept the response of the other place to the amendments proposed by the Senate to Bill C-7 and to conclude this legislative process to broaden access to MAID by removing the criterion of reasonably foreseeable natural death.

Today I rise, proud of the work of this house. As you all know, this place has done a thorough review of the bill and all related concerns. In doing so, we have devoted 8 full days in committee to listen to witnesses and 10 sitting days in this chamber to debate issues and to propose and vote on amendments.

Debates in this chamber were structured and generally reflective of serious consideration of the issues at stake. No surprise, the Senate’s work has received national media coverage and social media attention. We also received hundreds of emails and briefs from stakeholders, organizations and Canadians.

Through the whole process, we have shown to Canadians that the Senate is made of members that take time to analyze the details of important bills and, at the end of the process, enjoy the freedom to propose amendments to improve such a bill while respecting its scope and purpose.

Our proposed amendments were duly considered by the government and by a majority of MPs in the other place. Those deliberations resulted in the revised Bill C-7, now back to us for a final and last consideration.

It is unfortunate that some MPs have refused to consider the Senate amendments because they originated in what they describe as an “illegitimate” institution. Colleagues, allow me to briefly comment on this assertion.

How should we define legitimacy? Where do we find the source of legitimacy? Can we say that an MP elected with 25% of the votes cast in a riding is illegitimate? Can we say that a government made up of members of a party that has received fewer votes than the official opposition is illegitimate? Can we say that a prime minister chosen by a political party and not by a majority of Canadians is illegitimate?

I’ll venture to say that in a constitutional democracy like ours, legitimacy rests with the people and in the constitutional documents that they have agreed to directly or through their representatives.

In Canada, our current written Constitution has not been forced upon us by a foreign king or government. It comprises a series of documents that were negotiated and drafted by representatives of this country in 1864 and thereafter, including the Charter of Rights and Freedoms. These documents are not only legally binding documents but our “basic norms,” to use philosopher Hans Kelsen’s terminology.

The Senate exists because the drafters of the Constitution Act, 1867, and subsequent changes devoted substantial effort to design an upper house as a necessary part of the federal Parliament. The Senate is not only a legally valid chamber of Parliament but an institution as legitimate as the courts, including the Supreme Court of Canada, the provincial and federal governments and the House of Commons.

Of course, each institution, be it the Supreme Court, a government, a legislature or the Senate remains legitimate only insofar as it does not overreach its powers and its mission.

The Senate’s legitimacy rests on its role as defined in our constitutional documents. The drafters of our Constitution have designed a Senate composed of individuals of a certain age residing in the different regions of this country, appointed until they reach the age of 75, to bring to the legislative process a perspective different from those of MPs, elected mostly as members of political parties.

As said by these drafters in their speeches and as reflected in our constitutional documents, the Senate, though called the upper house of Parliament, is not superior in power or authority to the House of Commons, and it does not pretend to be. It is, rather, designed to play a complementary and ultimately differential role to a House of Commons made up of MPs regularly elected by the people. Thus, the famous description of the Senate as the place of sober second — I repeat, second — thought.

With respect to Bill C-7, we fulfilled that role by proposing five amendments to the House of Commons that are essentially based on compassion, as Bloc Québécois leader Yves-François Blanchet said in his comments before the parliamentary press gallery. In response to our proposals, the government decided to move amendments that either respond to them or propose mechanisms to respond quickly. This government response has been considered, debated and accepted by a majority of the members of the House of Commons from several political parties. As a result, we have a better bill before us today.

The government and a majority of MPs also committed to work closely with us to establish a special joint committee in the near future to review the experience to date with MAID, to make proposals on advance directives and on access to MAID by mature minors, and to examine the report of a panel of experts mandated to propose protocols and safeguards relating to access to MAID where a patient’s enduring and intolerable suffering is solely the result of a mental disorder.

The 24-month timeframe is reasonable given that, if amendments are needed to regulate access to medical assistance in dying following the reports of the expert panel and special committee, it will be possible to make them even if an election is held in the meantime.

We must now decide whether, under rule 16-3(2), we want to insist on our amendments as proposed or state that we are satisfied with the revised bill that was sent back to us. In my opinion, as I said in June 2018 when we debated the legislation on cannabis, a response from the House of Commons to the proposed Senate amendments demands deference since, at the end of the day, the elected members are the ones who are accountable to the public with regard to this bill.

Honourable senators, I submit for your consideration that the Senate should disregard the House of Commons’ response to our proposed amendments only under very specific circumstances and never based on political opinions about the rightness of the policy objective in the contemplated bill as defined by a majority of members in the other place. That could possibly be done at second reading of a bill, but we are long past that now.

At this stage, we have reached a point where we are not speaking about the content of the bill but the nature of the relationship we would like to establish between this house and the other house in a manner that preserves our legitimacy. In other words, we must define the relationship with the other place, respectful of the constitutional design without overreaching.

Honourable colleagues, I propose that we adopt, at this stage of the legislative process, a principle-based approach relying on objective criteria and not on political, economic, sociological, religious, personal or other views.

In June 2018, I said at a similar stage of the debate on the Cannabis Act that we must conduct a contextual analysis using certain objective criteria that I outlined, and certainly other criteria. I will only go over them briefly today. These are inspired by previous statements by members of this chamber, current and past, as well as written texts by learned authors, such as Professor Emeritus Paul Thomas of the University of Manitoba.

First, if the response is accepted, will it result in legislation that violates the Constitution or the Charter of Rights? For me, the revised bill is no longer an unjustifiable breach under section 1 of the Charter of the equality rights of those suffering from a mental disorder. If, for you, the answer is unclear, I suggest that the task of answering that question be left to the courts.

Second, is the purpose of the bill an election campaign issue for the government? Or is it instead an extremely controversial issue for which voters did not give the government a mandate? As we all know, the origin of this bill is a decision made publicly by the Prime Minister and the Attorney General during the last general election, not to appeal the judgment of the Quebec Superior Court and instead to propose a bill implementing the judgment.

In addition, polls show that over 70% of Canadians surveyed support the principle of broadening access to MAID.

Third, does the evidence provided to both houses unequivocally and unambiguously show that the message, if accepted, will result in a bill fundamentally defective in part or in whole? Clearly, the bill as amended, pursuant to the message, is not of that nature. To the contrary, it addresses fundamental flaws related to the blanket exclusion of mental illness and the scope of the definition of “mental illness.”

Fourth, does the response show the majority is abusing one or more minorities, showing contempt for some fundamental rights or demonstrating favouritism for one region at the expense of another? Clearly, the bill, as amended in the response, is indicative of a willingness to allow access to MAID to all, without discrimination based on prohibited grounds such as mental disorders.

In saying that, I am mindful of the concerns raised by national disability rights organizations who have made their case for more resources to ensure the right to live in dignity. These concerns have been echoed by some UN Special Rapporteurs and should be further examined.

There’s no doubt that more can be done in terms of improving our health care system and better understanding the social determinants of health, but these arguments must never be used as grounds to deny other Canadians of their constitutional right to autonomy, including the right to die with dignity if they so wish.

Fifth, does the House of Commons response reject Senate amendments designed to prevent unforeseeable and irreparable damage to the national interest? Clearly, the bill and the message received today does not support such a conclusion.

For these reasons, honourable senators, I invite you to vote in favour of the House of Commons message. I want to add that to do otherwise will be an illegitimate overreach demonstrating that the Senate does not understand its true role.

For these reasons, I repeat, we should accept the motion as proposed by Senator Gold. Thank you, meegwetch.


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