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Take three

The federal government is asking the Quebec Superior Court for a third extension to amend its medical assistance in dying law, with Bill C-7 held up before the Senate.

Parliament in winter

There, it will likely face numerous amendments that would force it to return to the Commons, which rose for its winter break on Friday.


The extension was requested until February 26, 2021, but would not be needed if the Senate passes the bill without amendments by December 18th.


"We should have never had to do this, but the Conservatives' tactics have put Canadians in a potentially precarious situation," Justice Minister David Lametti stated over Twitter. "If nothing has changed by the 18th, there will be no adequate safeguards and supports in Quebec for those whose death is not reasonably foreseeable."


The Conservatives staged a filibuster in the House of Commons at the report stage and third reading of the bill. They finally agreed to let it go to a vote on December 10th. Because it is a hung parliament, the government could not use the tools of time allocation or closure without Bloc Québécois or NDP support, which neither opted to give.


"I hope the extension will not be needed," Lametti said. "I am optimistic that Senators can pass this by the 18th. We know Canadians, especially those who are suffering, are anxious to see these amendments come into effect. We will continue to do everything in our power to see them passed."


Sources within the Liberal caucus have told CBA National that they have been told the five-year legislative review of the existing MAiD regime is slated to start in January, though this has not been announced publicly. That review was supposed to begin in June, but was pushed off because of the pandemic and the inability to come to an agreement on how to ensure that Parliament would keep functioning throughout it.


The Senate's legal and constitutional affairs committee held pre-study hearings on Bill C-7 while it was still in the Commons, but did not put forward amendments before the bill passed the committee stage in the Commons. Their interim report did not list any recommended changes to the bill, which means that amendments will likely come from the Senate floor and debated there.


Conservative Senator Denise Batters, a lawyer and former chief of staff to the Minister of Justice in Saskatchewan, says that if Lametti had read the committee's interim report, he would have seen that there were "major flaws" in the bill that she says will prove problematic in the Senate.


"It will be virtually impossible for the Senate to pass Bill C-7 before December 18th," says Batters. "Frankly, it's unbelievable that the Trudeau government is still even pushing for that, and it is indicative of the contempt this Liberal government has, not only for the Senate's constitutional role of 'sober second thought,' but also for the voices of the vulnerable Canadians who they shut out of the conversation during the House of Commons' review of this bill."


University of Ottawa law professor Carissima Mathen notes that many of the voices at the committee from the disability community have been treading over ground covered by the Carter decision.


"It almost seems like they wanted the case to go forward on appeal, not because these are new issues, but because they really want to re-litigate a good portion of Carter, and I don't see that as a particularly good direction for public policy," says Mathen.


Mathen says that because Carter was a unanimous decision of the Supreme Court of Canada that indicates that the previous version of the law was unconstitutional, it won't get revisited.


Other senators have also pointed out that they were correct in saying that the courts would strike down the existing version of the MAiD legislation, and are pushing to have the mental health exclusion dropped as well.


Batters says that she is still evaluating whether to move amendments to the bill, but says that she is most concerned that the bill potentially violates the Section 15 Charter rights of persons with disabilities, and with the removal of the 10-day waiting period.


"The lower court Truchon decision struck down the requirement for a 'reasonably foreseeable' death in order to access assisted dying," says Batters. "It did not call for the removal of safeguards around the practice. Yet Justice Minister Lametti's response, Bill C-7, unnecessarily proposes the removal of not only that 10-day waiting period, but the loosening of a number of other safeguards."


Batters says that given the parliamentary calendar, even meeting a new February date will be challenging.


"Minister Lametti is not watching very carefully if he thinks only Conservative Senators have major problems with this legislation," says Batters. "Senators on all sides have serious and significant concerns about this bill, and we will all examine this piece of legislation with the sober and effective scrutiny it deserves. That will take as long as necessary."


Mathen says that because of the level of debate around the issue, it is not possible to have an abbreviated discussion of the issue.


"This is something that Canada has been grappling with five years in terms of the Carter and post-Carter contexts, but many years before that, and my feeling is that a lot of opinions are fairly firm," says Mathen.


A possibility does exist that with two opposed groups in the Senate each pushing for amendments, that a situation akin to what happened with Bill C-69 in the last parliament – the Impact Assessment Act – where contradictory amendments were added to the bill, and sent back to the House of Commons for the government to sort out.


Mathen says this could send a signal that groups are talking past each other, and ultimately that is a decision for parliamentarians to take. Still, unless they are willing to use the notwithstanding clause, there is a constitutional context that also has to govern.