The Senate has voted to significantly change the Liberal government's doctor-assisted dying bill, setting the stage for a game of legislative ping pong that may never be resolved.
Senators on Wednesday night voted 41-30 to broaden the scope of Bill C-14 by amending its definition of who is eligible for medically assisted death in Canada, scrapping the requirement that a patient be close to death. A mix of Conservatives, independents, and independent Liberals supported the change.
The move followed much soul searching in the Red Chamber, as senators struggled to define their place in a much more independent institution that has traditionally taken its cues from the elected Commons.
"The government is just going to have to accommodate what's happening now in the Senate and what the result of this process will be," Senator George Baker, the independent Liberal sponsor of the bill, said before the Senate meeting on Wednesday.
"They might not like the result, but that's the consequence of having a new system."
Still, Mr. Baker later told the Chamber he does not think it is the Senate's place to vote against the bill entirely.
"The bar should be very high for us to reject legislation that's passed by the elected body," he said.
The amendment passed on Wednesday means the eligibility criteria for medically assisted dying now match the language in last year's Supreme Court of Canada decision – the parameters currently guiding the procedure, along with provincial regulatory bodies, in the absence of legislation. But some of the bill's safeguards, such as two independent witnesses and a reflection period, are not yet enshrined in federal law.
The court's decision said competent adults with a "grievous and irremediable" medical condition who are experiencing enduring and intolerable suffering can qualify for medical aid in dying. The Senate's change further defines "irremediable" as not remediable by any treatment acceptable to the patient.
The government's bill defined a "grievous and irremediable" medical condition as an incurable illness and said a patient must be in an "advanced state of irreversible decline" and natural death must be "reasonably foreseeable."
Justice Minister Jody Wilson-Raybould said earlier on Wednesday that the government "worked incredibly hard" to find the right approach for the bill.
"We're confident that we've found the right balance between recognizing personal autonomy and protecting the vulnerable," she told reporters.
"If we were to consider removing reasonable foreseeability, that would broaden the regime, the balance that we have struck, that we're confident is the best approach right now in this country."
Many witnesses at parliamentary committees, including constitutional expert Peter Hogg, have argued that the end of life provisions make the bill unconstitutional – although others, such as Ms. Wilson-Raybould, disagree.
"The ministry believes through its considerations, its advice, and its deliberations that this bill is Charter compliant. Let there be no mistake about that," independent Senator Peter Harder, the government's representative in the Senate, told the Chamber.
Once the bill is done in the Red Chamber, it goes back to the House of Commons for another review. But the Liberal government is signalling it will not accept an amendment to change the end-of-life eligibility criteria.
If neither side relents, the bill could be stalled in legislative ping pong – a back and forth between the houses. The two houses could hold a "conference" in an attempt to resolve the legislative impasse – but the outcome is not guaranteed.
The Senate will continue to debate over the next few days what could be dozens of amendments, including additional safeguards and advance consent for patients with mentally degenerative disorders such as dementia. On Wednesday, however, the Senate held several hours of debate for the one amendment.
"The problems in Bill C-14, are essentially that it is an initiative to try to limit the class of peoples who have received the rights according to the Supreme Court," said independent Liberal Senator Serge Joyal, who moved the amendment on Wednesday. "The court never qualified the full criteria as including that the person has to be at the end of life or terminally ill."
Senators of all stripes stood up to support the decision to broaden the scope of the bill.
Conservative senator Linda Frum said those with unbearable suffering, but who are not terminally ill, must qualify.
"To deny such individuals the right to control their own bodies, their own minds, and, yes, their own deaths, strikes me as a cruel abuse of legislative power," Ms. Frum told the chamber.
Independent Liberal Senator Lillian Dyck agreed that the bill is unconstitutional.
"If we pass C-14 as is, this will force some of the people with grievous and irremediable medical conditions to endure intolerable pain for longer periods of time than others with the same condition who are deemed to be closer to a natural death," she said.
But others worried that the change would affect vulnerable people such as those with serious physical handicaps.
"You are adding safeguard problems for a whole set of people," said independent Senator Diane Bellemare, the deputy government representative in the Senate, who voted against the amendment.