Last week, as part of his fit of pique that the federal government passed bills C-48 and C-69, Alberta premier Jason Kenney announced that the province would revive their defunct and unconstitutional "consultative election" legislation for Senators. While there is little danger of it being used right away the next provincial election is slated for around May 31, 2023, which is when this sham Senate "election" would be held, and the next Alberta vacancy is due by March of 2021, when Senator Elaine McCoy is due to retire, it wouldn't be able to be held before then (unless Kenney holds some kind of a special election, which I would not put it past him to do), the whole scheme is just an instance of Kenney manufacturing a grievance that he can use as a cudgel against the federal government. After all, he has whipped his voter base into a state of irrational anger that he has no means of dissipating, and he now has little choice but to keep the cycle going and hope that it doesn't blow up in his face.
Alberta's history of "electing" senators has always been constitutionally dubious, and it was done as a kind of impotent protest against Ottawa. The whole mythology around a so-called "Triple-E" Senate was never going to work in the first place the kinds of things it railed against in its populist way, such as the National Energy Program or the decision not to maintain the CF-18s out of Winnipeg would not have been stopped by a Triple-E Senate, and the only thing it would accomplish would be to create 105 new backbenchers that would stymie the legislative process because they suddenly had electoral legitimacy that would "outweigh" that of MPs given the scale of the number of constituents each represented. That Stephen Harper made a point of appointing largely only "elected" senators until the prorogation crisis of 2008 forced his hand into making those 18 panic appointments (the quality of most of which were proven to be dubious) was meant to try to pressure other provinces to adopt Alberta's model, but that too was shot down by the Supreme Court of Canada.
In their 2014 reference decision on Senate reform, the Court found that trying to use "consultative" elections was unconstitutional without a constitutional amendment because it fundamentally altered the constitutional architecture of the Senate, as it would "modify the Senate's role within our constitutional structure as a complementary legislative body of sober second thought." After all, one of the roles of the Senate is to be able to look at issues beyond the next electoral cycle. Some scholars have stated that there was nothing in the decision about the province creating a process, but that's playing a bit too cute and legalistic with the reference decision. Indeed, it's the difference between the letter and the spirit of the law, or in this case, the spirit of the reference decision, and what the Supreme Court ruled as to what constituted the basic premise of the Senate.
Granted, constitutional experts I've spoken to have said that because the province isn't the one making the appointment, it would be hard to invalidate their "consultative election" law, but any attempt to use the results to pressure the prime minister into naming senators that emerged from that process is clearly contrary to what the Supreme Court stated in the ruling as it trying to do this on a one-off basis with each of the provinces that might adopt such legislation. That is clearly attempting to do through the backdoor what can't be done through the front door, and you can bet that the courts would not stand for it if a government attempted it.
The Supreme Court did state that senators selected from a list of "nominees" arrived by election would create the expectation of legitimacy. As they stated:
It is true that, in theory, prime ministers could ignore the election results and rarely, or indeed never, recommend to the Governor General the winners of the consultative elections. However, the purpose of the bills is clear: to bring about a Senate with a popular mandate. We cannot assume that future prime ministers will defeat this purpose by ignoring the results of costly and hard-fought consultative elections.
I would also note that in his questions during the hearings, then-Justice Thomas Cromwell asked that if consultative "elections" were fine, then why not consultative auctions?
Which brings us back to Kenney's case for reviving this legislation, all of which is premised on a foundation of lies. In drumming up anger against the passage of Bills C-48 and C-69, which he falsely claims to be an unconstitutional attack on Alberta's areas of provincial jurisdiction, he points to the Justin Trudeau-appointed Independent senators who voted in favour of those bills as amended, and claims that at least with "elections," there would be an element of accountability for them. This is another lie, however, because even if they were chosen based on the "election," it is for a non-renewable term, which means there is no actual exercise of accountability. Just picking a name off a list is not "accountability." It's a sham.
And that's exactly what Kenney is offering more snake oil to keep his angry base angry just a little longer, because he can hope to rail against a future prime minister not appointing any of the so-called nominees "elected" out of this process, and treat it as some kind of attack against the province. It's ironic that someone who has spent his career railing against totalitarian communism wants to recreate their electoral system in his province, which is what these sham elections have amounted to, with the NDP boycotting because they don't believe in the Senate, and the Liberals because the process was unconstitutional (and more to the point, the current federal Liberal party has disavowed its own senators). That leaves just nominees for a single party on the ballot plus any foolhardy would-be independents which doesn't exactly make it a proper exercise of democracy. But democracy isn't the point irrational anger and the creation of grievances is, and it's a very dangerous game.
Photo Credit: Edmonton Journal
