Every time the Senate threatens to veto a bill passed by the House of Commons, its defenders rush to assure us this is an extraordinary case, the exception not the rule. And it’s true: Most of the time the Senate does not obstruct democracy.
Forgive me if I do not find this greatly reassuring. I’m of the school that says that in a democracy only the people we elect should decide how we are governed. It is as wrong on that basis for an unelected body such as the Senate to prevent the people’s elected representatives from enacting such laws as they see fit as it would be for it to enact laws without them, and it is no more to be excused on account of its comparative rareness than is a wrongful conviction, on the grounds that “most of the time the courts get it right.”
While outright defeat of government bills may be unusual, moreover, it is not obvious this is always because the Senate defers to the Commons. The increasing frequency with which the Senate has demanded, and obtained, amendments to legislation – it amended 33 out of 88 bills passed in the last Parliament – suggests that, in at least some cases, it is the Commons that is giving way.
We shall see whether the same applies with regards to Bill C-7, the government’s response to a Quebec Superior Court ruling that its first attempt at legalizing assisted suicide did not go far enough. The Senate has passed five amendments to the bill, and is making the usual noises in defence of its impertinence: question of principle, fundamental rights, sober second thought, etc.
The bill’s demerits are not in doubt. It was unnecessary, for starters: The Quebec court had no legal basis to object to the law’s requirement that death be “reasonably foreseeable” (the Supreme Court, in R. v. Carter, may have declined to insert such a condition, but it did not say that governments could not.) Its ruling could and should have been appealed.
What is more, nothing in the ruling obliged the government to eliminate the mandatory 10-day waiting period after a request for assisted suicide, or to reduce the required number of witnesses from two to one – to cite two of C-7’s more gratuitous provisions. It would be better if the bill were withdrawn, or amended, or even referred to the Supreme Court. The world would not end if the government failed to meet the Quebec court’s Feb. 26 deadline.
But it is not for the Senate to impose such changes. It would be wrong even if the amendments it were demanding were likely to improve matters, and not, as I fear, to make them much worse. It is true that, in its haste to eliminate the requirement that death be, if not at hand, then at least in the offing, the government would entrench in law an invidious distinction. Henceforth, those suffering intolerably from a physical disability would have carte blanche to have someone kill them; the merely mentally ill would not.
Advocates for the first group were quick to note the implication – better dead than disabled – even as advocates for the second complained of being discriminated against. Had senators confined themselves to pointing out what a Pandora’s box would thus be opened, they might have rendered the public a service. But to extend the “right” of assisted suicide to those suffering from anorexia nervosa or obsessive compulsive disorder – I only wish I were making up these examples – is hardly progress.
Reasonable people can differ on these questions, of course. But what we ought to be able to agree on is that it should not be up to the Senate to decide. Were the Senate merely a kind of highbrow focus group, an advisory body without formal power to defeat, amend or unreasonably delay a bill, the amendments it proposes could be taken as mere suggestions, which the Commons could take or leave. But so long as they come backed by the threat of legislative force, they offend against democratic rule.
It wouldn’t take much to transform the Senate into such a body. It could be done by a simple change to the Senate rules, to the effect that any bill the Senate fails to pass within six months of its introduction “shall be deemed to have passed.” Perhaps the urgency of such a measure does not yet seem apparent to you. Perhaps you like what the Senate is doing. People seem only too willing to judge senators’ increasing willingness to overrule the Commons by whether they sympathize with them on the merits.
But there will come a time when the Senate blocks a bill you agree with. And where will you be then?
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