OTTAWA — The House of Commons bounced the assisted dying bill back into the Senate's court Thursday, rejecting an amendment that would have allowed suffering Canadians who aren't near death to get medical help to end their lives.
Appointed senators must now decide whether to stick to their guns or accept the will of the elected chamber, a choice some clearly find agonizing.
"I cannot in all good conscience simply vote down a bill that is better than having nothing at all," said Conservative Sen. Don Plett, who had hoped to impose more restrictions and safeguards on the right to an assisted death.
Health Minister Jane Philpott looks on as Minister of Justice and Attorney General of Canada Jody Wilson-Raybould responds to the media in the Foyer of the House of Commons on Parliament Hill Thursday June 16, 2016 in Ottawa. (Photo: Adrian Wyld/CP)
Conservative Sen. Doug Black said the Senate did its best to improve the bill and must now defer to the will of the Commons.
But others were adamant that without the primary amendment — which would have deleted the bill's proviso that medical assistance in dying be available only to those whose natural death is "reasonably foreseeable"— the bill doesn't comply with the charter of rights or with last year's landmark Supreme Court ruling, which struck down the ban on assisted dying.
"I will never support a bill ... that would strip a group of citizens of their rights that have been recognized by the Supreme Court of Canada," said independent Liberal Sen. Serge Joyal, who authored the amendment.
"I will never vote for that, never.''
Will senators stick to guns?
Similarly, James Cowan, leader of the independent Liberals, said: "I won't support a bill that I believe to be unconstitutional ... My position would be that we should stick to our guns.''
The Senate scrapped the foreseeable death requirement during two weeks of lengthy debate in the upper house before passing the bill with seven amendments late Wednesday by a vote of 64-12, with one abstention.
Early Thursday, Health Minister Jane Philpott and Justice Minister Jody Wilson-Raybould announced that the government would accept the more minor amendments. But, as expected, they stood firm on the legislation's central pillar: that only those near death should qualify for medical assistance in dying.
After a brief debate in the Commons, MPs voted 190-108 to accept the government's response to the Senate amendments. Only three Liberal backbenchers voted against the government's position, along with New Democrat, Bloc Quebecois and Green MPs and most Conservatives.
'Cohesive and balanced'
"It is crucial to keep in mind that Bill C-14 was carefully and deliberately crafted as a cohesive and balanced regime," Wilson-Raybould told the Commons.
"The balance sought in Bill C-14 would be upset by the broadening of eligibility criteria to individuals who are not approaching death without the corresponding safeguards for these specific cases.''
The bill now returns to the Senate, which is expected to debate and vote on the government's response Friday.
"I think that some changes (the government has accepted) are a good step but that doesn't address the main issue of constitutionality,"said Conservative Senate leader Claude Carignan, adding that senators need time to reflect on their response.
Senators could simply acquiesce, which the government is clearly hoping they'll do and which Senate insiders now believe is the most likely outcome. Liberal backbenchers privately say Trudeau told MPs Wednesday that it would be "appropriate"for appointed senators to defer to the will of the elected Commons, and he seemed confident they would do so.
But senators could also "insist" upon their amendment and send it back to the Commons, repeatedly if necessary, until one side or the other gives in. Or they could defeat the bill outright. Or they could shelve it, either by letting it languish in committee or by refusing to vote on it until the government refers the bill to the Supreme Court to test its constitutionality.
The latter route is one that Joyal would like to see debated.
Joyal's amendment would have replaced C-14's restrictive eligibility criteria with the more permissive parameters set down by the top court, which directed that medical assistance in dying should be available to clearly consenting, competent adults with "grievous and irremediable" medical conditions that are causing enduring suffering that they find intolerable.
C-14 would allow assisted dying only for consenting adults "in an advanced stage of irreversible decline"from a serious and "incurable"disease, illness or disability and for whom natural death is "reasonably foreseeable.''
Canada has been without a criminal law governing assisted dying since June 6, when the court's ruling went into effect. Philpott said many doctors are reluctant to provide medical assistance in dying in the midst of legal uncertainty and used that argument to pressure senators to give in on the bill.
"We realize that the Senate is aware of that as well," she said. "We hope that they will recognize that it's important that we get the legislation in place.''
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A look at some jurisdictions where right-to-die laws are in place. (Information courtesy of The Canadian Press)
A right-to-die bill was adopted last year, the first legislation of its kind in Canada. The law, scheduled to go into effect in December, stipulates that patients would have to repeatedly ask a doctor to end their lives on the basis of unbearable physical or psychological suffering. They would have to be deemed mentally sound at the time of the requests. The law, however, is being challenged in court by two Quebec-based groups on the grounds that it undercuts sections of the Criminal Code that outlaw assisted suicide and euthanasia. The federal government has expressed its opposition to the legislation but is named as a defendant in the court challenge because it is responsible for the Criminal Code.
The results of a referendum made Oregon the first U.S. state to make it legal for a doctor to prescribe a life-ending drug to a terminally ill patient of sound mind who makes the request. However, doctors cannot administer the life-ending drugs and the patient must swallow them without help. Patients must state three times -- once in writing -- that they wish to die, and those statements must be made at least 15 days apart. They must also obtain a concurring opinion from a second doctor that they have less than six months to live and are of sound mind. The law took effect in late 1997, and through June, 2014, just over 800 people had used the law.
The state became the first in the U.S. to allow a person's right to die through legislation rather than through a court decision or a referendum result. Vermont's law, which took effect in May 2013, is closely modelled on the system in Oregon and uses the same safeguards. Patients must state three times, including once in writing -- that they wish to die. They must also obtain a concurring opinion from a second doctor that they have less than six months to live and are of sound mind.
In January 2014, a judge ruled that competent, terminally ill patients have the right to seek their doctors' help in getting prescription medication if they want to end their lives on their own terms. The state's attorney general is appealing the ruling, and a decision on whether it will be upheld is expected later this year.
A referendum saw the state enact right to die legislation in 2008. As in Oregon, patients with less than six months to live must administer the doctor-prescribed lethal medication on their own. According to a government report, 549 people applied for the right to die between 2009 and 2013. Of those, 525 actually took their own lives.
In 2009, the state's Supreme Court ruled that Montana's public policy supports mentally competent, terminally ill patients being able to choose aid in dying. Physicians are allowed to prescribe medication that patients must administer themselves. More detailed legislative bills have been introduced in the state but have not passed. The court ruling still stands today, but data about its usage is not available.
A law passed in 1942 forbade anyone from helping someone kill themselves for selfish reasons. As a result, people arguing that they are assisting with a suicide for unselfish motives are not considered to be committing a crime. Suicides can be assisted by people other than doctors and no medical condition needs to be established. Switzerland is the only country that allows foreigners to travel there for the purpose of ending their own lives.
In the Netherlands, euthanasia is legal under specific circumstances and for children over the age of 12 with parental consent. In Europe, patients don't have to prove that they have a terminal illness -- establishing unbearable suffering is usually sufficient. Dutch doctors are allowed to perform euthanasia if a patient whose unbearable suffering has no hope of improvement asks to die with a full understanding of the situation. A second doctor must agree with the decision to help the patient die.