Mind the constitutional gap - Macleans.ca

Mind the constitutional gap

If Harper wants to kill the Senate, he should first look back at the career of his one-time idol, Pierre Trudeau


Blair Gable / Reuters

They have always said that the young Stephen Harper admired Pierre Trudeau. A lot. Harper’s original boss at Imperial Oil once told the Edmonton Journal’s David Staples that Harper, having fled the University of Toronto for the frozen prairie, “thought Trudeau was God.” He is even said to have made himself a nuisance at work by insisting on it. This is in a late ’70s Alberta workplace, mind you. It sounds as though he was a bit fortunate not to get dunked in hot bitumen and feathers.

Alberta turned Harper against the Liberal pantheon of his youth, and his rebellion, in time, triumphed. Yet one notices that the new boss has a suspiciously familiar attitude toward the Constitution. Trudeau tried to patriate the Constitution over the heads of the provincial premiers, dismissing the requirements of federalism for the longest possible time as an irritating nullity. Now Harper wants to either kill or emasculate the Senate: his lawyers are arguing that the former could be done with the consent of only seven provinces, and the latter with none at all.

Trudeau eventually had to accept the fact of Canada’s federal nature, and it is a pretty good bet that Harper will too. The Constitution does not explicitly say which amending formula applies if somebody should decide to abolish the Senate. The “general” formula is the familiar “7/50” (seven provinces making up half the population), but changes to the Constitution’s amending scheme itself, like other changes to the deep essence of the Constitution, require unanimous consent from the provinces.

And the Senate, of course, is involved in the (so far quite hypothetical) process of making amendments. Indeed, it is mentioned no fewer than 12 times in Part V of the Constitution Act of 1982—that’s the bit about how to make amendments. We know it’s 12 because lawyers for the province of Manitoba did the counting: the figure is in their factum in the Senate reference case now before the Supreme Court. Even though Manitoba’s NDP government favours Senate abolition, its representatives are arguing, with admirable disinterestedness, that the “unanimity” formula applies. If you get rid of the Senate, you are tampering with Part V and you need 10 provinces.

The federal government’s bright idea is that Part V does not technically have to be touched if the Senate is abolished. The references to the Senate’s role in the amending process can be left there in the text: the courts can just regard them as “spent” if there is no longer a Senate in existence. In practice, this would mean a real change in the amending formula for the Constitution, and Harper’s lawyers admit this in their factum. A fair summary of their argument would be: “But it’s no big deal, it’s just the stupid old Senate.” They are hoping to persuade the court that 7/50 applies as long as the language in Part V isn’t actually altered.

The Supreme Court’s resistance to this sort of flummery is pretty much its one reliable historical constant. But you have to admit this about the Conservative government’s position: the creators of the amending formula had the chance to specify where Senate abolition fit in, and they blew it. It is a grey area that was apparent almost immediately after patriation, for it is not as though Senate abolition was thought up last week. And, of course, this goes back to Trudeau’s—the original Trudeau’s—haste to finish his career with a flourish.

Our Constitution can accurately be described as the envy of the world, but then again the world doesn’t really get to see us gawking at each other in open-mouthed confusion over embarrassing gaps like this one. The key features of the 1982 Constitution were hammered out in smoke-filled hotel rooms by men who intentionally refused to record their discussions and who have never ceased arguing about exactly how they went. The various Canadian governments built the frame in haste, were late to begin talking to each other, never involved the public, and left the structure consciously half-finished. It’s a wonder it hasn’t yet come down on our heads.

On the web: For more Colby Cosh, visit his blog at macleans.ca/colbycosh


Mind the constitutional gap

  1. Harper doesn’t have the guts nor the leadership to make needed changes or he would have already done so. Being in the PM spot since 2006, and no real accomplishments other than losing “Trust”, the neo-Con Trudeau lover is not getting my conservative vote.

    Harper seems quite ok with the massive waste, massive bailouts, high taxation, government bloat…all in our wallets and grand kids debt just like Trudeau.

    Time for the back room to change politicians, as like diapers, once on too long they all begin to stink.

    The real problem voters have is none of the parties represent productive people as all they do is argue how to waste our money. We vote for a MP that really answers not to us, but to the party leader back room money lobby money bought. Democracy is a farce and why we are stuck with statism governemtn bloat. All on the ballot represent not us, but the governemtn. Just lie and deceive for a vote and you too could be a MP.

    Ottawa isn’t going to be fixed until 2 things happen, the middle class gets a real leader and a mini-revolution to force Ottawa to be fixed.

    • Good luck with that. You expect all that to happen by 2015. There are only three choices in the next election unless the sky falls; Trudope who doesn’t know anything about anything, the socialist Mulcair with the kiddie caucus and who is a one trick environment pony who will spend us into poverty and of course the guy who has the job. Neither of the other two knows anything about how the economy works and given the next election will be about the economy Harper will win again. Trudope can go back smoking pot and angry Tom can just stay angry.

      • Trudeau doesn’t have to be an economic expert – he can delegate it to someone who is.And considering Harper is an economist i wouldn’t say he’s doing much for the rep of the profession.Having a PM who Listens will be a refreshing change after Harper.

        • Do you really want the PM of your country not to be able to understand let alone talk about the economy of the country. Ignatieff tried that and failed miserably. Dion tried explaining his Green Shift and failed miserably. I know you hate Harper but there is one thing he does understand and that is how the economy works no matter what you think.

          • “If there was going to be a recession, we would have had it by now” – Stephen Harper, 2008.

          • The fact is Harper was talking about Canada. However, he like the world had no idea that the world economy was going to implode because of what the banksters in the United States did. Selling worthless mortgages is not cool. Its easy to take words out of context. The fact is we got what we got and we got through it relatively smoothly. I can just imagine if the three idiots had of taken over the government.

          • Harper vocally opposed the bank reforms, implemented by martin, that saved Canada’s backbacon. We narrowly escaped economic catastrophe at Harper’s hands – if it hadn’t been a minority government early on, he might have destroyed us.

          • Yes Harper did what he had to do by deficit spending urged on by the opposition parties. However, it worked because he tied the provinces into the strategy, forcing them to decide on the projects and making them accountable. That allowed spending to be controlled and everyone acknowledges that it was handled well. Your comment about economic catastrophe is not supported by the facts.

          • yes, we might have been devastated if not for the opposition, preventing Harper from deregulating. Possibly the stimulus saved us, maybe it didn’t.

          • Surely you are not talking about bank deregulation which was a discussion during the Chretien years. Then what deregulation are you talking about. Maybe you are simply struggling to find something to be critical about.

          • Once the crap hit the fan, even harper could tell what disastrous results following his advice on banking deregulation would have had.

          • Nice try at deflection, but you completely ignored the thrust of GFMD’s comment – namely, that Harper & Flaherty were looking to deregulate our banks and make them more “American”. Had this actually happened prior to the collapse, we would have been in much worse shape – and Harper would not have been going about boasting about how strong our banks are and how the world should follow our lead.

          • “The fact is Harper was talking about Canada”

            That’s revisionist bs. The context of the debate at the time was clearly a looming recession in the US that could well have global repercussions as well as in Canada. It wasn’t long after that Harper turned on a dime and used the D word. All of this happened within the context of that 08 election. Even Dion saw it coming, why didn’t Harper?

          • One wonders how previous PMs like Chretien or Mulroney ever got along without degrees in economics? I guess they just had to make do with finance ministers that did.
            Your personal unbiased opinion of what JT knows or understands about economics is idle and speculative. As your attempt to link him to Dion or Ignatieff. Shorter holinm – only a guy like Harper is qualified to be PM cuz I say so.

        • Furthermore, if you truly want an “expert”, at a head of G7 nation level, Harper’s credentials just don’t cut it. he has a master’s degree but no directly relevant experience or CV in the area. heck, my accountant cousin probably has better academic to real world experience with numbers.

          It’s always nice to have taken some classes in the area, but he’s just not cut out for it at the levels a real economist would need.

          • To me his biggest failing [ apart from being an unmitigated strategic liar]his is lack of an understanding of law, particularly constitutional law.
            It’s led him to make some bizarre assertions about the role of parliament. Although it is difficult to tell what’s ignorance and what’s deliberate,

        • “Trudeau…can delegate”.
          Yes, it is very true that Trudeau does not have to be an expert in the economy or really anything. He can just surround himself with intelligent, knowledgeable, trustworthy advisers. That sort of strategy requires two ingredients to be successful though. The first, is that Mr. Trudeau has to fully accept his limitations. The second is that he has to pick advisers that have no secondary agendas. Otherwise, we could end up with a PM like former Alberta premier Ed Stelmach (widely known as “special Ed) or worse George W. Bush who had Dick Cheney, Paul Wolfowitz etc. pulling the puppet strings.

          • Entirely possible. It’s an ongoing experiment. So far i think he’s shown a remarkable instinct for the game. But there’s no way he’s going to make Maude Barlow a minister of the crown. If he does i’ll be worried too.

  2. As far as I can Harpo is the living proof of our need for a Senate… Albeit, in my opinion, an elected one.

  3. When did our constitution get to be ‘ the envy of the world’??

    • It’s an incredily unique and relevant document in that it’s from a first world industrialized commonwealth nation and is just over 30 years old. For instance, when the new South Africa was formed, they pored over our stuff with a fine tooth comb. That may not be “the envy” but don’t discount it’s overall importance

    • While you were writing 7,769 mostly dumb internet comments. Our Constitution enjoys wide admiration in comparative law circles; Google Scholar can help you satisfy yourself on this score, as would asking someone who knows anything about it. All should note that I write those words as no fan of Trudeau I.

      • Our implementation of democracy makes us a laughing stock among developed countries. The prime minister is the de facto head of state. He or she is indirectly elected and almost always represents a minority of voters. We have an undemocratic senate filled with corrupt partisan crony appointments. We have a primitive voting system that doesn’t ensure democracy (majority rule) at a local or federal level.

        If Harper can get rid of the senate that will go a long way in tackling the democratic deficit.

        • Yes, much of our ‘govt’s’ functioning is by tradition, precedent, gentlemen’s agreements….and then we get a crowd of people in there who aren’t gentlemen…and it turns out we have no govt at all.

      • There are lots of constitutions in the world….we have but one, and took our basic framework from the Magna Carta many moons ago….and then added to it with Trudeau.

        We should stop the myth-making. It doesn’t do us any good.

        PS We have long been aware you swing right. You even have the same manners.

        • “You even have the same manners.”
          Given the speaker, that’s incredibly hilarious!

          • Ahhh now it’s my manners you’re worried about. Cute.

          • Just sayin’. The irony is delicious.

          • What does one have to do with the other? You have zero self awareness; can’t even see the irony of you accusing Cosh of lacking manners when you are constantly on here slagging others.

          • It’s not WHAT I say that bothers you….you don’t even hear
            that….it’s HOW I say it.

            I’m not hesitant enough, not soft-spoken, humble, deferential enough.

            I’m usually plain-spoken….blunt…assertive….definite….just like most men on here.

            And even though we’ve had men on here who are….often profanely ….. racist, sexist, anti-semitic, anti-abortion….whatever….who never get called out on their manner of speaking…………?

            Well…hafta tell ya…it’s not me that’s the problem.

          • No, it’s definitely what you say. On the occasions when I agree with you I leave you alone or even thumb you up (I’ve learned not to agree in writing because you, oddly, think I’m opposing you when I do).

            And I’m not in any way apologizing for the behaviour of others. That’s irrelevant to my point. I just find it bizarre that the pot has no clue that she’s as black as the kettle.

          • You have no idea what I’ve said…ever.


  4. “The various Canadian governments built the frame in haste, were late to begin talking to each other, never involved the public, and left the structure consciously half-finished. It’s a wonder it hasn’t yet come down on our heads.”

    Are you still talking about the omission of a provision to reform the senate here? Because if not you’re simply wrong about public consultation. Many hands were involved in baking that constitution act cake; literally dozens of different groups, ranging from FNs to women’s rights advocates pushed their way to the table if they had to; Trudeau frequently threatened to go over premiers heads and hold referenda on the charter; the final sitting of the joint House committee was an enormous and completely open affair. Pick up a copy of Ron Graham’s Last Act, it’s a surprisingly interesting read and wonderfully written.
    I understand there are parallels between Trudeau and Harper, but in the end there’s no comparison between the two men when it came/ comes to the issue of public consultation. Trudeau eventually came around, even if he didn’t like it. Harper is far more likely to simply sulk on being told no , and immediately start looking for another way to get into the building, anything to avoid coming in the front door like everyone else, or hold a constitutional conference where he could be openly challenged. Trudeau loved a public scrap; Harper is never prepared to risk losing one.

  5. The Constitution Act of 1982 was signed without the consent of the province of Quebec. I’m not sure how the Supreme Court can justify unanimity as a requirement to abolish the Senate when the document that defines the powers of the Senate was not itself passed with the consent of all provinces.

    • Nevertheless, it’s a pretty good bet that Quebec’s voice will be the loudest to claim that unanimity is required.

    • The same way the charter has full effect within QC whether the PQ like it or not. Passing motions in the National Assembly condemning the Constitution Act did not invalidate the constitution or absolve QC from being subject to it, nor, ironically enough did prevent Levesque from using the NWC a number of times to signal his displeasure; he knew it was all he could legally do
      . Until QC formerly leaves it is bound by that act, as is every other province.

      • Exactly why it is so unusual that something as fundamental to the lives of Canadians as the Charter did not require unanimous approval of the provinces whereas scrapping the Senate would.

    • Because in certain long-standing and very essential respects, the nine provinces that signed bound themselves, as they surely had the power to do, to accept a Quebec constitutional veto that historic federalism would practically require anyway. Is this really so difficult an answer? The “powers of the Senate” were basic law in Canada from 1867, not 1982.

      • The function of the Senate was codified in its ultimate form in 1982 including the amending formulas applicable. You are correct the basic powers of the Senate were established in 1867 at Confederation.

        I find it odd the Quebec government’s opposition to the 1982 Act was based on Quebec’s lack of having a constitutional veto which they would seem to have anyways if killing the Senate does require unanimous approval.

        • The Quebec government’s opposition in 1981 was based on them being separatists. They COULDN’T agree to any sort of deal. And Levesque conceded on the veto issue himself.

          All else was mere details. The Gang of Eight was a filibuster tactic for Quebec City, which is why the other provinces eventually abandoned them. (After Levesque abandoned them first.) And Trudeau was right to push it — he and Chretien and the other 72 Quebec Liberal MPs were just as much morally legitimate representatives of the people of Quebec as were the members of the provincial assembly.

  6. Ignoring the formula question for a minute…I think this would be a great question to take directly to the people with a referendum. Even up against regional representation issues it would be tough to see how Senate abolitionists could lose the “Senate is a bunch of fat-cat-tax-dollar-wasting-geriatric-partisan-do-nothing” argument.

    Though I presume this would not be binding (sorry Politics 020 I can’t remember) it would be hard to see any province not agreeing to abolish after a successful referendum…thus making the 7/50 or unanimous consent issue moot.

    Arguments for keeping the senate are wishy-washy and complex; arguments for abolishing are strong and simple….this has referendum written all over it.

    And hey, didn’t Old Stephen Harper used to be into ‘direct democracy’ back when he still had principles?

    • This has come up before – no matter what the overall numbers, if enough supporters of a party in power in one province wants to keep it, or wants to tie getting rid of it with something else it wants, it’s still game over.

  7. Harper has no decency, ethics nor morals, what-so-ever.

    Harper is handing Canada to Communist China. Harper just gave another oil company to China, Novus Energy. Harper is planning a massive resource project in our High Arctic for China as well.

    Harper has handed China the keys to, our tar sands, mines, timber and Harper is permitting Communist China, to buy up our Canadian farmland.

    Harper’s Omnibus Bill permits China to sue Canada if, anyone tries to block China’s takeover of our country. China can even sue Canada, in the International Courts.

    Harper’s FIPA deal with China means, China will take Canada over for, a minimum of 31 years.

    Harper has signed a deal with, the Communist China Army.

    I signed the petition against Harper’s FIPA deal with China.

    People need to be damned careful, of what they wish for.

  8. Canada always seems to run 10 years behind the USA in all matters. It is but an anomaly Harper followed Nixon by 30ish years; doublespeak and crook disclaimers notwithstanding.