The senator who fought the federal Liberal government on the constitutionality of its physician-assisted dying bill says he hopes the provinces take up the charge now that it has become law.
Independent Liberal Senator Serge Joyal was the driving force behind the Senate's key amendment to Bill C-14 – removing the end-of life-criteria, including that a patient's natural death be "reasonably foreseeable" in order to qualify.
But Liberals in the House of Commons rejected that proposal, and another attempt by Mr. Joyal to refer the "reasonably foreseeable" provision of the bill to the Supreme Court of Canada was voted down by senators, who passed the law on Friday.
Mr. Joyal, a lawyer with expertise in the Constitution, argues the end-of-life provision violates the Supreme Court's 2015 Carter decision, which found that adults with a "grievous and irremediable" medical condition who are suffering intolerably have the right to end their lives with the help of a doctor.
"I was very disappointed" when the legislation passed, Mr. Joyal said in an interview. "It was a very sad day. ... Parliament decided quite openly to exclude citizens whose rights have been already granted by the Supreme Court."
Mr. Joyal, along with several senators who spoke to the bill, said it's now inevitable that the law will be challenged. He believes there are two avenues: a patient who is sick and suffering but not at the end of life can bring a case to court, or a provincial government can refer the law to a provincial appeal court to determine its constitutionality.
"My preferred option would be for a province, because it would alleviate what I call the cruel onus put on the shoulder of a patient," he said. "This is the shortest, more humane, most expedited and most preferable option to clear the doubt."
In particular, Mr. Joyal pointed to Alberta and Quebec as options – Alberta, because its Court of Appeal recently ruled that a woman with a severe psychiatric illness was eligible for assisted death, and Quebec, which has its own assisted dying legislation that restricts the procedure to those with terminal illnesses.
Neither province was available to comment on Sunday.
Not all senators agree on the court's role. Conservative Senator Bob Runciman on Friday argued that if the Supreme Court finds the bill unconstitutional in the near future, Parliament should push back by invoking the notwithstanding clause.
"In my view, the court, all too frequently, goes well beyond interpreting a law or even determining a Charter right," Mr. Runciman said. "In the Carter case, for example, the court chose to take it upon itself to not just rule on constitutionality, but to identify relevant policy considerations and then develop a policy framework to define the law that will apply to Canadians."
Mr. Joyal said if there is a reference to a provincial court, he will petition to intervene, as he did in 2014, when the Supreme Court heard the former Conservative government's Senate reform case.
He said it's the Senate's role to raise "lasting" constitutional issues that may be overlooked by the elected Commons.
"The problem has not been cured by the adoption of Bill C-14. It's not because the elected majority has ruled on it that in fact it's solved," he said. "The question is still open."