OTTAWA — The Senate voted Wednesday to allow suffering Canadians who are not near death to seek medical help to end their lives, knocking out the central pillar underpinning the federal government's proposed new law on medically assisted dying.
Senators voted 41-30 to amend Bill C-14, deleting the requirement that a person's natural death must be "reasonably foreseeable.''
The amendment replaces the eligibility criteria in the bill with the much more permissive criteria set out in last year's landmark Supreme Court ruling, which struck down the ban on assisted dying.
That sets the Senate on a potential collision course with the government.
Justice Minister Jody Wilson-Raybould signalled earlier Wednesday that the government is unlikely to accept such an amendment.
Minister of Justice Jody Wilson-Raybould and Health Minister Jane Philpott, right, talk to reporters outside the House of Commons on May 31, 2016 in Ottawa. (Photo: Fred Chartrand/Canadian Press)
"We've worked incredibly hard on this piece of legislation to ensure that we find the right balance and we're confident that we've found the right balance between recognizing personal autonomy and protecting the vulnerable,'' she said outside a Liberal caucus meeting.
"If we were to consider removing reasonable forseeability, that would broaden the regime, the balance that we have struck.''
She added: "There would need to be additional safeguards ... This is an incredible and momentous change in our country and we're confident what we put forward is the right choice for Canada right now. It's a first step.''
"This is an incredible and momentous change in our country..."
In anticipation of that reaction, the amendment, proposed by Sen. Serge Joyal and passed late Wednesday night, is intended to go hand-in-hand with another amendment, to be proposed by Conservative Senate leader Claude Carignan.
Carignan's amendment would impose an additional safeguard, requiring a judge to sign off on an application for assisted dying by anyone who is not close to death. It is to be debated and voted upon separately.
Liberal Senator Serge Joyal speaks to the media outside the Senate Chambers on Parliament Hill on June 18, 2015. (Photo: Fred Chartrand/Canadian Press)
The near-death proviso in the bill has been widely condemned by legal and constitutional experts who maintain it renders the legislation unconstitutional and flies in the face of the Supreme Court ruling.
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.''
"We are thrilled that the Senate has listened to reason and has done its duty."
That's more restrictive than the Supreme Court's directive 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.
"We are thrilled that the Senate has listened to reason and has done its duty — to give second thought to flawed bills adopted by the House of Commons and to uphold the rights of Canadians,'' said Josh Paterson, executive director of the British Columbia Civil Liberties Association, a plaintiff in the court case that resulted in the assisted dying ban being struck down.
"We commend senators on their serious and thoughtful approach to this issue and for having the fortitude to stand up and fix this bill which would violate the charter rights of suffering Canadians.''
Government representative said it 'largely guts the bill'
Senators voted for Joyal's amendment despite a warning from Sen. Peter Harder, the government representative in the upper house, that it "largely guts the bill.''
Joyal and others argued that the amendment was necessary to ensure the bill is constitutional.
"I believe this bill is deeply flawed and I can not support it as it stands because, in my view, it is unconstitutional,'' said Sen. James Cowan, leader of independent Liberal senators.
Others cast the amendment in terms of ensuring compassion for those who are suffering intolerably.
"I believe this bill is deeply flawed and I can not support it as it stands."
Conservative Sen. Linda Frum said she doesn't believe that Parliament has an obligation to echo the Supreme Court's ruling word-for-word. But she added: "I do believe that there are fates worse than death, such as unbearable and excruciating pain that promises to last for years on end, grievous physical and mental suffering, the loss of human dignity.''
"It's possible for all of these conditions to exist separately from a reasonably foreseeable death.''
No process in place to break deadlock
The amendment puts the Senate on the path towards a potential impasse with the House of Commons, which must decide whether to accept or reject any changes proposed by the upper house.
If the Commons rejects the amendment, Carignan has predicted the Senate will "insist'' upon it.
There is no mechanism for breaking a deadlock between the two houses of Parliament.
Theoretically, the Senate could repeatedly send the bill back to the Commons with the same amendment, until one chamber or the other gives in.
The two chambers could also agree to hold a "conference'' — a procedure to resolve an impasse that has not been used in some 70 years.
Another option would be for the Senate to refuse to pass the bill until the government refers it to the Supreme Court to test its constitutionality, Joyal said.
The Senate did that with the Harper government's initial attempt to unilaterally reform the Senate. The government eventually did refer the matter to the top court, which advised that the reforms could not be achieved without constitutional amendments supported by at least seven provinces.
Without a law, procedure governed by Supreme Court's rules
An impasse between the chambers would prolong the time in which Canada is without a criminal law governing medical assistance in dying. When the top court struck down the ban on assisted dying, it gave Parliament a year, later extended by four months, to craft a new law. That deadline passed on Monday.
In the absence of a law, the procedure will be governed by the eligibility criteria spelled out by the Supreme Court, guidelines issued by medical regulators in each province and any rules set by provincial governments.
The Senate is expected to continue debating the bill and voting on other amendments into next week. Other amendments are expected to propose allowing advance requests for assisted dying for those diagnosed with competence-eroding conditions like dementia and explicit protection for the conscience rights of health care providers who refuse to provide assistance in dying.
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