Harper has the Senate reform blues after Supreme Court hands him another defeat


If you’re anything like me, you begin to salivate at the prospect of reading a juicy, much anticipated constitutional analysis by the Supreme Court of Canada of the Harper government’s proposed Senate reforms.  Then again, you’re probably not like me.  Maybe you didn’t hear about the latest Supreme Court smack-down administered by the Justices (and to think those left-wing kooks thought that he had packed the court with sympathetic judges!) of the highest court in the land.  I’ve taken the liberty of boiling down 75 pages of rather repetitive discussion about amendment formulas to a neat little paragraph below!

Basically, the Court shut down every attempt by the Harper government to change the Senate.  First, Harper’s position: The Feds can limit the terms of Senators to 9 years.  They can hold elections and appoint the winners (they already have a bunch from Alberta).  Finally they can abolish the whole damn thing tomorrow without consulting the provinces, if need be.  On top of all that, they can make all these changes without ever resorting to the general amendment formula (section 47) that requires 7 of the provinces representing 50% of the population of Canada, to sign on to any of these reforms.

Now the cold, harsh reality of Canada’s constitution according to the institution that is entrusted with guarding it: No, no, and NO.  Just about the only small concession the Court was willing to make was on the question of property ownership rules.  The Original 1867 Constitution of Canada requires that Senators own up to $4000 worth of property (a lot of money in the olden days, you know!) in the province the Senator represents.  The Court said that the unilateral repeal of this condition was exactly what the “framers of the 1982 Constitution intended.”

But even then, there was still a big qualification: due to the impact this would have on Quebec Senators, the Feds would still have to consult that province.  And judging by the fact that Quebec got the ball rolling for this Reference, in the first place, with their government’s own reference to the Quebec Court of Appeals on the Senate reform Bill C-7 last year, I’m guessing that they’re not going to play ball should Harper ever think of trying.

Harper was clearly frustrated (though he might have just been suffering indigestion) when he mentioned in passing during a scrum the other day that this ruling, effectively, forced the government to accept the status quo and that Senate reform was now officially “off the table.”  He made no comment on the “judicial activism “ or so called legislating from the bench, presumably because it would be slightly ironic for him to accuse a court comprised predominately of Justices he appointed, of having a hidden political agenda.

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The other leaders were naturally only too glad to gloat about the latest indignity inflicted on the Prime Minister by the guys in red robes (see my earlier column).  Tom Mulcair explained that no constitutional lawyer worth their salt ever thought that Harper’s reforms would pass muster with the Court and that the whole reference was basically designed to provide political cover for Harper’s half-baked Senate legislation and terrible track record on the file.  While Mulcair may be pleased with the decision’s political implications, he failed to explain how or, more importantly, why the NDP would be carrying on with their own constitutionally daft project to abolish the Senate?  In light of the Court’s judgement that such a plan would require a unanimous agreement throughout Confederation on the need to overhaul the Constitution, an even higher threshold than Harper’s precious elected Senate, this seems about as likely as the Leafs ever winning another Stanley Cup.

As for the Grits, they proved why they’re still the party of the status quo or bust.  In a press release they claimed that the Supreme Court had vindicated their position that the Senate could only be reformed through consulting the Provinces, and that, in any case, Canadians were opposed to any future constitutional negotiations regarding the Senate.  Shameful, considering that this is the same party that recently celebrated the constitutional revolution that inter- governmental negotiations brought about with the 1982 patriation of the Canadian Constitution.  Stephane Dion (not JT) extolled the virtues of his leader’s banishment of their Senators from Caucus and implored the Conservatives to do the same (note the NDP has no Senators).

The trouble is, Canadians overwhelmingly agree with Harper and Mulcair that the Senate is broken, and it’s not clear to anyone that the rebuke given to Harper’s proposed reform of the Senate might not also apply to Trudeau’s.  The Supreme Court may not have directly addressed JT’s plan to appoint Senators on the basis of expert recommendations, but it stands to reason that if they require the PM to consult the provinces because his preferred method of selecting new Senators (elections) changes the “constitutional architecture” then surely the process being pedaled by Trudeau would require the same.

It looks like 1 in 3 Canadians who still regard the Senate as being “useful” are the only ones that will be satisfied with this judgement.  Given that the scandals involving notorious Tory Senators Duffy, Brazeau and others, didn’t adversely affect these peoples’ opinion of the Red Chamber,  I have a sneaking suspicion these folks probably aren’t all that politically savvy.


Other articles by David DesBaillets

Chickens coming home to roost on “open nominations” promise
What’s really behind the silence of Harper on the trial of Fahmy in Egypt
Harper has a bad day in court
The “Leprechaun” of Canadian finance takes his walk in the snow

Follow David DesBaillets on twitter @DDesBaillets


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