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With no certainty that the Liberal government's legislation on assisted dying will make it into law by the June 6th deadline, stakeholders are wondering what happens if it doesn't? And which amendments, if any, are likely to eventually be passed? What is the law likely to look like in the end? Richard Mahoney, John Capobianco and Tom Parkin are in the ONW Salon.

 





Tom Parkin:

On three key issues – marijuana legalization, electoral reform and assisted dying – the new Liberal government has made an absolute confusing mess because of pride and cowardice.

On C-14 – the assisted dying bill – it is disappointing to see a Liberal Party at odds with the Charter of Rights and Freedoms and the Supreme Court of Canada. I always would have assumed these institutions were bedrock to which a Liberal party would be anchored.

The number of respected constitutional lawyers who are condemning C-14 as a violation of the Charter rights of Canadians is considerable. Several legal associations and two courts – including an Ontario court, this week – have said this bill does not comply with the Carter decision.

A layperson can see some of the simple differences. For example, the Supreme Court said Canadians have the right to relieve a loss in the quality of life – of suffering. The Liberal bill is simply about advancing a reasonably foreseeable death. These are different conceptions – and the government’s conception restricts the Charter right identified by the Supreme Court.

In fairness, there are some legal scholars who support the bill. But conformity with the Charter isn’t decided by popularity contest. Given the severe concerns, the government should have referred C-14 to the Supreme Court for review. But this government is too proud of itself, too unwilling to admit to any error. And so it has twice used time allocation to ram this flawed bill through the Commons -- concerns and suffering of Canadians be damned.

Canadians are compassionate people – that is why a Forum poll last summer showed almost 80% of us support right-to-die legislation.

Next Monday the Supreme Court’s decision will take effect. Canadians can legally undertake assisted-dying, which the Supreme Court says is our right. But because this government has made a mess with this bill, there are concerns a suffering person will have to go through a costly court battle to avail themselves of their Charter right. Because of too much pride, this Liberal government is blocking Canadians from accessing their Charter rights. Who would have ever thought it?

That our last hope – that the scandal-plagued Senate will fix this government’s mess – is an indictment. While both the Liberal and Conservative Senate leaders have said this bill is unconstitutional, we don’t know what the others will say – whether they will fix it or inject their own petty, unelected biases.

And let’s remember how we got here, because it started well – an all-party Commons committee created a consensus report that seemed to respect the Carter decision. But some Conservatives put out a minority report. And then the government’s C-14 followed much of that approach in what I can only guess was motivated by pure political cowardice.

The majority Liberals could have acted with the support of the NDP – and likely the Bloc and the Greens' Elizabeth May, too. Instead they caved-in to the right. I am so disappointed.

 

John Capobianco:

This is one of those issues that is extremely sensitive and personal and, as such, can make for very passionate feelings on both sides of the debate. Unless someone has had the unfortunate experience of having a loved one in such unspeakable pain where the decision to end the individuals life is a better option than to see them suffer more, then it is difficult to weigh in.

Those who are adamant believers of life both at conception and until natural causes take one’s life are not supportive of assisted dying and have been vocal throughout this debate, especially those within the Conservative caucus. However, the MPs voted 192-129 to send the assisted dying bill (C-14) to third reading, which will most definitely pass the Liberal majority in the House.

All but four Liberal MP’s voted with their party. There were 19 Conservatives who voted with the Liberals, and all of the NDP, Bloc and Green Party Leader Elizabeth May voted against the bill. Although what is interesting to note is that all nine opposition amendments proposed to the bill failed to pass the House of Commons.

So with that, the PM is still holding out hope that the bill will be passed by both houses of Parliament in time to have new legislation passed before the Supreme Court's deadline of June 6th. No one is clear on how the Senate will approach this once it passes the House, but more and more view the deadline coming and going.

Tom's points about the handling of the bill and the issue of whether or not it conforms to the Charter are ones that have been discussed for most of the debate on C-14. But there are families out there who really need to know what this government is going to do with the Supreme Court's decision, and relying on the Senate to fix this isn't a solid strategy.

 

Richard Mahoney:

Tom’s comments on the Trudeau government’s approach to the assisted dying bill, legalization of marijuana laws and electoral reform are an over the top partisan attack, rather than a reasonable analysis of the balancing of difficult choices involved in each of those issues. As John points out, there are many in this country and this Parliament who have serious concerns with the concept.

It is interesting to note that Tom’s attack, and that of his friends in the NDP caucus, focus around their idea that this legislation would not survive a constitutional challenge. They state this as a fact, when the reality is far from that. As a wise friend of mine once said, there are no facts in the future. Neither Tom, nor Tom Mulcair, nor anyone else in the NDP caucus knows enough about Canadian jurisprudence on the Charter to know what a future Court would decide. To say otherwise is to be less than truthful with Canadians.

It is true that the legislation as introduced does not go as far as many would like, and not as far as the majority report on the Commons committee recommended. But this is a big step. On difficult issues like these, it is appropriate that our governments listen and move cautiously, helping society deal with and accept the changes as they come. As the Prime Minister says, it is a first step. No one expects, nor should they expect, that this is the last word or the last evolution of Canadian policy on doctor assisted dying.

The Supreme Court of Canada ruled that a criminal law banning it is unconstitutional. It gave the Harper government until February to bring in a new law. The Harper government took no action. When Justin Trudeau formed a government in November, it applied for an extension and the Supreme Court gave it until June. That is why it is important to pass the legislation now.

Many amendments have already been made to the law. The Senate may amend it further when they consider it next week. The suggestion of a further delay to refer the matter to the Supreme Court again is neither wise, nor practical. Most experts say we need a law in place now - another Court reference would delay that by months if not longer, and that wouldn’t help anyone waiting for relief, instead leaving our laws in limbo.

 

Tom Parkin:

There are two fundamental problems with your argument, Richard.

First, you argue that since the Supreme Court hasn’t ruled on this we can’t know if C-14 is unconstitutional. Which is exactly the point I made: there is significant body of very respected opinion saying this bill is contrary to our Charter rights and it should have been put to the Supreme Court for review. Simply puffing up the chest and denying concerns from very qualified people isn’t good enough.

Second, you argue that there are many people on many sides of this issue. This is a matter of rights - not a popularity or pandering contest. This is about respecting the Supreme Court’s interpretation of the Charter of Rights and Freedoms – or not.

How many people are on how many sides is almost irrelevant. In the words of our Prime Minister - my number is nine - the number of Justices of the Supreme Court. That's who interprets our Charter rights.

I also have great difficulty with Liberal House leader Dominic LeBlanc's incorrect claims that there will be a legal vacuum. First, there is the Court's decision. Second, there are the provincial regulators' guidelines.

I also have great difficulty with Justice Minister Jody Wilson-Raybould mentioning that the current certification process will end on Monday - as if that implied no one will be able to avail themselves of this right. But the fact is no one will need a certificate. What they will need, unfortunately and because of the political mishandling, is a lawyer.

What Mr. LeBlanc and Ms. Wilson-Raybould have said is the kind of guffaw a person says when reason and logic are not accessible.

 

John Capobianco:

Tom, I take issue with your flippant comment about people taking sides on this issue being irrelevant. Really? From an NDP'er!

I totally hear you about the bill's contradictions with the Charter and you know as well as anyone that lawyers or constitutional experts can agree and disagree on any issue, much as economists do.

The crux of the constitutionality issue is that the eligibility requirements in C-14 are more restrictive than those outlined in the Charter decision, which is your point.

So wondering what will happen next and what the final bill/legislation will look like is anyone’s guess as this will go to the Senate for “sober second thought”. No longer having a formal Liberal caucus in the Senate - as you will recall, they were kicked out of the Liberal caucus back before Mr. Trudeau became PM - causes some angst.

Of the 86 occupied seats in the Red Chamber, there is a unique mix of 42 Conservatives, 21 Liberals and 23 independents, and with the exception of Senator Peter Harder, none have any formal relationship with the government. When the question of amendments gets raised it becomes a challenge, as any proposed amendment must be accepted by a majority of those 86 Senators.

Earlier this month, the Senate committee, which is composed of seven Conservatives, four Liberals and one independent, completed an expedited study of the bill and made several recommendations. Most of them dealt with very contentious issues in the bill. Should amendments be made in the Senate, the bill goes back to the House for approval, which adds more time. It is also possible, though very unlikely, that the bill could be defeated in a Senate vote since there are uneasy feelings towards it.

I started with the observation that this is a very personal issue and one not to be taken lightly. I hope whatever comes out of this bill; the people who will be touched by it will get some level of comfort.

 

Richard Mahoney:

Tom repeated his argument that he thinks the law is unconstitutional. I won’t repeat my response other than to say this: the Supreme Court of Canada struck down the existing law as unconstitutional. While we don’t know what it might decide in the future, we do know that the Court would be reluctant to strike down a new law passed on the same subject - Courts interpret laws and ensure they conform to our Constitution, they do not legislate and pass laws. They may well interpret the new law, as amended, as being a reasonable response to the Court decision. On what they might do, there will be and are as many opinions as there are constitutional experts, stakeholders and opponents.

It is the job of Parliament to pass the best law it can. Tom is also dead wrong, as John suggests, that Parliament and the government of Canada don’t have a responsibility to educate and to lead Canadian society to accepting and dealing with these new and difficult realities. This government allowed its members a free vote on this issue, recognizing this fact.

Tom and the NDP suggest that there will be no vacuum after next week. Nonsense. First of all, the law was struck down, so there will be no national law until a new one is passed. There ‎will be significant uncertainty among providers; there will be serious access problems for Canadian patients who want a peaceful and dignified death; and the vulnerable will not be sufficiently protected.

Secondly, the Carter decision of the Supreme Court was concerned only with physicians. It did not deal with the potential role of nurse practitioners, pharmacists or other medical practitioners involved with assisted dying cases, who are covered by Bill C-14.

Tom suggests that provincial and territorial guidelines would suffice. That is also not right. In all of the guidelines produced by regulatory bodies to date, only physicians may be providers, which causes access concerns for people in remote and rural communities at a minimum.

Passing this law now, even if, as some suggest, it does not go far enough, will give one legal framework for all of Canada. As time and practice evolve, we should listen, learn and, where appropriate, amend the law to reflect the best interests of Canadians.

 

Richard Mahoney is a lawyer with deep experience in politics and governance.  He is a former senior advisor to the Rt. Hon Paul Martin, a former Campaign Chair and President of the Ontario Liberal Party. John Capobianco is a Senior Partner and National Public Affairs Lead at FleishmanHillard. He has been a Conservative strategist with over 30 years of political activism at all three levels, including as a former federal Conservative candidate. Tom Parkin is a veteran NDP strategist and a frequent commentator on national issues. 

 

 

 

Posted date : June 01, 2016
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