The Harper government's galling argument in the Senate reference -

The Harper government’s galling argument in the Senate reference

The government aims to change the amending formula by stealth


Adrian Wyld/CP

Yesterday, the federal government released its factum (set of arguments to the Court) on the Senate reform reference. Paul Wells already has a good initial take on the feds’ approach and I will be writing much more on this in the days leading up to the Supreme Court’s hearing in November. But I wanted to specifically comment on the Justice Department’s arguments about why unanimity is not required to abolish the Senate.

Whether it requires seven provinces or 10 to get rid of an institution many critics appear to regard as arcane or useless might seem like a relatively trivial legal issue. Yet the arguments presented throughout the factum, and on abolition especially, go to the heart of something much more important: if the Constitution is fundamentally about establishing the rules and structure for how our democracy and governing institutions function, the constitutional amending formula is about who gets to write those rules.

What’s particularly galling about the government’s factum is its attempt to reduce the text of the amending formula (Part V of the Constitution Act, 1982) to secondary or “incidental” importance, when in fact the amending formula is at the heart of the reference case.

Right at the start of the section of the factum on abolition, the government’s lawyers begin by flagrantly abusing the plain meaning of the constitutional text.

153. The abolition of the Senate by any of the methods suggested in Question 5 would not constitute, in pith and substance, an attempt to amend Part V of the Constitution Act, 1982, because abolition of the Senate is not a matter in relation to the amendment of the amending procedures. The changes resulting to the operation of those procedures would be incidental to the Senate’s abolition.

This statement is true only if you literally don’t read the amending procedures. I’m a stickler, so here’s the text of the general amending procedure, section 38(1), and the unanimity procedure, section 41. Note that I’ve added the relevant parts in bold to help the DoJ’s lawyers out:

38. (1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by

  • (a) resolutions of the Senate and House of Commons; and
  • (b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces.

41. An amendment to the Constitution of Canada in relation to the following matters may be made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province:

  • (a) the office of the Queen, the Governor General and the Lieutenant Governor of a province;
  • (b) the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province is entitled to be represented at the time this Part comes into force;
  • (c) subject to section 43, the use of the English or the French language;
  • (d) the composition of the Supreme Court of Canada; and
  • (e) an amendment to this Part.

Note 41(e): “Part” refers to all of Part V of the Act. Any changes to the amending formula require unanimity. The factum later acknowledges this, and things get a little more complicated when, as the factum points out, we see that the drafters provide for an effective veto in the event the Senate fails to pass a resolution on an amendment. From the factum:

162. The primary argument advanced by those who believe the unanimous consent procedure is necessary to abolish the Senate is that the abolition of the Senate itself constitutes an amendment to Part V of the Constitution Act, 1982 and therefore requires unanimous approval pursuant to s. 41.

163. The Senate is expressly mentioned in ss. 38, 41 and 43 of Part V. However, the Senate is not an essential actor in relation to any of the multilateral amending procedures in the Constitution. With the exception of s. 44 of the Constitution Act, 1982, the Senate has only a suspensive veto in respect of the amendment process. The absence of the Senate would not prevent the enactment of amendments under s. 38 (the 7/50 formula), s.41 (unanimity) or bilateral/multilateral amendments under s. 43.

164. That the concurrence of the Senate is not required for any of the major categories of amendments of the Constitution is supported by s. 47 of the Constitution Act, 1982. That section makes it clear that an amendment to the Constitution under ss. 38,41,42 or 43 may be made without a resolution of the Senate if within 180 days after the House of Commons adopts an authorizing resolution, the House again adopts the resolution.

This is a really interesting interpretation, in that it suggests all the references to the Senate in the amending formula are meaningless because section 47 allows the Senate to be overridden after 180 days. Except one could flip the logic here and suggest that the Senate is in fact very important to the amending formula—so important that the drafters took pains to include a separate clause requiring a full 180 days to pass before the Constitution can be amended without the Senate’s approval. “Incidental” indeed.

Other parts of the factum actually do a pretty good job of undercutting the “incidental” relationship the word “Senate” has with the amending formula’s text:

165. Even amendments under s. 44 of the Constitution Act 1982, which gives “Parliament” the power to amend the Constitution, do not necessarily require Senate approval. The definition of “Parliament” in s. 17 of the Constitution Act, 1867 could be amended (pursuant to s. 38) to remove the reference to the Senate, such that the Senate would cease to be a part of Parliament. That would not be an amendment in relation to the Part V amending procedures but rather, an amendment in relation to the composition of Parliament, and thus within the general amending procedure found in s. 38. The consequence of that amendment would be that the newly-defined Parliament (now consisting of the Queen and the House of Commons) would inherit any and all powers of legislative amendment under s. 44 of the Constitution Act, 1982. Thus, Part V is exhaustive both with regard to the reform of the Senate, but also with respect to its abolition.

By highlighting that section 44 refers only to “Parliament” and the definition of “Parliament” can be changed, the DoJ’s lawyers imply (accidentally, I assume) there is a substantive significance in the decision by the drafters to refer expressly and separately to “the Senate” in the other sections.

Other arguments in the factum are such a stretch of logic only Mr. Fantastic could follow them (Fantastic 4 anyone? He’s the guy who can stretch really far… OK, I’m sorry). Here’s the government’s entire argument for how these seemingly important references to the Senate automatically become “spent”:

160. The abolition of the Senate by means of the general amending procedure found in s. 38 of the Constitution Act, 1982 would not constitute, in pith and substance, an amendment to the amending procedure. Any provisions that mention the Senate that might remain in the text of the Constitution would be spent. Precedent for this is found in relation to the abolition of the upper house of the Quebec Legislature. Section 71 et seq. of the Constitution Act, 1867 still refers to the “Legislative Council of Quebec” even though that body was abolished by the Act respecting the Legislative Council of Quebec, S.Q. 1968, c. 9.

I have already outlined why, in pith and substance, “abolishing” the Senate constitutes an amendment to the amending formula. The feds’ example of the upper house of the Quebec legislature would be a great one if it was mentioned in the amending formula. It is not.

More hand-waving abounds throughout the factum:

157. … The general amending procedure could be used to realign the distribution of seats in the Senate and remove the legislative “powers” of the Senate. The removal of these key features of the Senate through the general amending procedure strongly suggests that the Senate could be abolished using that same procedure.

Again, this is only convincing if  you ignore the text of the amending formula. It is true that the general formula can gut the Senate of its powers. At a minimum, however, this would impose a 180-day delay on all future amendments by virtue of section 47. The federal government’s argument that these provisions become “spent” belies the plain language of the Constitution and subjugates the amending formula—how we decide who gets to change the country’s supreme law—to a subordinate, incidental role.

I’m agnostic on Senate reform or abolition. What I find offensive about the government’s factum is that it constitutes a blatant attempt to change the constitutional amending formula by stealth. The Supreme Court would be irresponsible to allow it.

Emmett Macfarlane is an assistant professor of political science at the University of Waterloo. His book, Governing from the Bench: The Supreme Court of Canada and the Judicial Role, was published in 2013 by UBC Press.


The Harper government’s galling argument in the Senate reference

  1. Maybe I’m getting paranoid, as it is not that hard to do with Harper’s Conservatives, but Harper’s appointed senators are the reason why they are trying to abolish the senate. It almost seems like this was the plan the whole time, so his government can get away with writing unconstitutional laws. The Senate is supposed to be the last check to ensure the wording of these laws is legal. I do not believe in getting rid of the senate altogether but do believe in elected senators from the people, not appointed by whichever party is in power. That is, I believe, the very definition of conflict of interest or corruption.

    • All MPs and riding candidates are also appointed by their respective parties, regardless of who actually “wins” under First Past the Post. We have no Democratic Government in Canada.

    • It was the plan. Harper’s team applications of Hegel’s dialectics worked to a cue, but I seriously doubt the objective is to abolish the senate; reform is a more likely outcome.

  2. What can you expect from a rogue government…Harper believes laws are only to be followed when they are convenient, otherwise they are to be ignored or misinterpreted as desired.

    • Rogue Government? What rogue government? last time I checked the CPC got elected in a democratic (what ever that is) election by Canadians, not by some coup d’état.

      You must be a one of those leftwing socialist who thinks that CPC’s Harper was sent from hell while the LPC’s J. Trudeau walks on water or even worst NDP Mulcair his a saint sent from heaven.

      Also, by ‘ignored or misinterpreted as desired’ did you mean ‘ignored or misinterpreted as desired’ like the Libs have been doing since KING ? P.E.T.? Chretien? or Martin? cause they pretty much applied the rules as they saw fit the Globalist Agenda.

      Ain’t nothing more dangerous to Canadian society then a blind groupthink Sheep.

      • You must be one of those blind rightwing anti-socialist that blindly worship Harper and his gang. That thinks all Liberals was sent from hell and should be returned to hell where they belong.

        • Unfortunately for you I’m not. I dismiss every ill-conceived action taken by Harper and the CPC every time they are foolish enough to fall into the Globalist pattern.

          As for the Liberals (Marxist, Socialist, Libertarians, The International) and all the rest of the leftwing socialist clowns who blindly act in accordance to the Globalist Agenda, including the paid for propaganda media, well I can’t blame them for being ignorant or uneducated.

          They’re just following along the groupthink social wave much like rats following the pied piper of Hamelin unaware that they are pawns used by the elitist in a globalist game.

          Learn your politics Peorhum. It isn’t about provincial or national interest or lol, political parties anymore; it’s about eternal servitude to the Global Elitist and the lost of our (all nations) God Given Rights and Freedoms.

          • Not sure it is right to call liberals Marxist. Being liberal is about being tolerant and thus believing that ALL classes deserve their rights which isn’t quite the same as Marxism.

            I too don’t like this globalization or global Agenda as you call it. I see such movements as being primarily driven by and for big businesses, more so for the multinational corporations then for the benefit of nations and people. I am tolerant of other nation’s desires for employment and such but I believe that Canada should come 1st to Canadian governments, with the people’s needs and desires, the ecology, and business needs being balanced in governance.

            I know my politics quite well actually and I can’t help think you maybe of the conspiracy type. I suggest you worry more about the neocon conservative movement which is truly an elitist movement, and the bad governance done by Harper and his happy gang. Canada is about peace, order and good government…not sure that is what Harper and his gang is about from what I see. How can anyone stand for order when rules/laws are only to be followed when convenient.

            Like it or not, since chalk river and onwards the conservatives have shown themselves rogue. Instead of being a responsible government they are proven themselves repeatedly about broken rules/laws, lying, deflecting, and generally proving that they don’t know how to govern and are in over their heads.

          • Reading your comment is like listening to young Marxist ‘bleeding heart’ Trudeau putting on a show for the media a few months back; you must of memorized his every word. It’s amassing how you leftwing advocates always, and I means always play the conspiracy card; I’ve got bad news for you sunshine it’s not a conspiracy.

            How many members of the CPC are members of the UNPA (not a conspiracy) globalist pushing anti-nationhood / anti-sovereignty (not a conspiracy) one world government? Now let’s flip that around how many members of the NDP and LPC are members of the UNPA (not a conspiracy) globalist pushing anti-nationhood / anti-sovereignty (not a conspiracy) one world government? who signed the Globalist agenda SPP (not a conspiracy) agreement? who is for the creation (not a conspiracy) of the NAU?

            Who pushed for the Globalist (not a conspiracy) Carbon tax? Who pushed kyoto (not a conspiracy), Copenhagen(not a conspiracy)? who rose from the Canadian Marxist ranks (not a conspiracy) to lead this nation into a debt abyss (not a conspiracy)?

            It’s not your fault.

          • talk f*******g sense so the rest of us can understand just how stupid you are

          • Hey buddy, it ain’t my f******* problem if you’re dumb uneducated arse can’t follow along

          • You accuse someone of being dumb and uneducated, yet you use ‘must of’ in your previous post? That’s not a typo.

  3. Asking the Surpreme Court for a ruling on something is not changing it by “stealth”. Taking this to the Supreme Court is precisely the opposite of making a stealth amendment. And if some professor of political science can pick up on this “frightening” development, I’m pretty sure the nine highest judges in the land can detect it as well, and rule accordingly.

    • that’s a fair statement, but I’m not sure Macleans authors write the titles and subtitles of their arguments, so it might not be the writer himself.

      • oh wait, Ctrl+f shows me the term is used down near the end in the body of the article. My mistake.

    • Wake up and learn how to think. Harper has been using stealth ever since he set foot on this earth. He’s doing it now.

      • I’ll leave it to the 9 Supreme Court justices to “think” on this complex legal and Constitutional argument, thank you very much. You can take the lead from the poly-sci prof, and call that “thinking” if you wish.

      • One of the most calculating, cold blooded, career politicians, to ever have been elected to be Prime Minister.

  4. “This statement is true only if you literally don’t read the amending procedures…Other arguments in the factum are such a stretch of logic only Mr. Fantastic could follow them (Fantastic 4 anyone? He’s the guy who can stretch really far… OK, I’m sorry”

    Lol … We really are being governed by the Keystone cops. I wonder, does anyone in cabinet possess a valid degree in constitution law?

    • I don’t think they have any luminaries like say Irwin Cotler or even Thomas Mulcair (happy to accept corrections on the point) in the CPC. The Dept. guys are probably just doing the best with a bad hand dealt to them.

      Underlying the entire thing though is not the lack of legal expertise with the CPC (although its a factor). it’s the prevalence of a deep belief in the “Calgary School” of political thought. I think part of the reason that the reference took so long is because Harper and many of his closest advisers actually truly believe the courts are “illegtimate” and a tool of easterners gays and non-whites to wrest power from the hands of the people. Now that’s a theory, and maybe it’s true in some alternate-universe Canada where the common-law tradition developed differently over hundreds of years and there is less rule of law and a circumscribed court.

      But reality has a “Laurentian Consensus” bias.

      • If I might be so bold as to amend a line of speculation: “…because Harper and many of his closest advisers ‘in addition to a significant percentage of the general public who understand the issue’ actually truly believe the courts are “illegitimate,” ‘courtesy of the Trudeau (et al.)-drafted Constitution Act’, and a tool of ‘fellow-traveling’ easterners, gays and non-whites to wrest power from the hands of the people.” Otherwise, I think you’ve mostly nailed it.
        We might debate who’s living in the alternate universe, of course. 2015 might well decide it for everyone. (Hence, the fear one senses from the tenured squirrels of academia, and the intellectually compromised among the Ottawa bureaucracy. I’m betting on a renascent Dominion of Canada, though. Hail victory!)

        • simple answer: no. You are an example of the problem being described.

          • Your problem. Our looming success. Hail victory!

          • QED.

      • You’re right. Harper has been schooled by Flanagan, an American TeaPartier, and actually went to Republican Youth Camps after he moved west. Calgary was invaded by US Oil Republicans, it all starts there. Manning, right in there. Koch Brothers, financing it all. The Tea Party wants Canada – we’re a source of oil, wildlife, space, and best of all – no Democrats.

        Of course they don’t see anything valid in our form of government. They have no use for a Queen, a Senate or anything else that isn’t going to fit with their notion of Canada as a New Frontier. That’s where we’re headed – and Canadians sit like a bunch of dummies and watch him. The only bright light on the horizon is Justin Trudeau, and I don’t know if he can do it. Mulcair and the NDP are useless lapdogs who basically co-operate with Harper. Layton was a fool.

        • The Koch brothers were financing Preston Manning and the Reform Party were they? I though it was aliens.

  5. And here we are with a useless, gutless Opposition.

  6. People running the world today are the most foolish people in the
    history of the world. They cause the problem but they are running the
    world. I find it strange even if no one else does. Why don’t anything
    they say or do makes any sense, because its not suppose to. Why is that
    because they are trying to be who they are not, impostors trying to
    control the universe, when they can’t control the Dick in their pants,
    and want the rest of humanity to be like them Perverts with no sense. Just like benjamin levin who teach female teachers like Mary Gowans, Nathalie Champagne, Gordy Stefulic and V arla A b r a m s to do illicit acts with students and get protected by the unions from criminal charges.

    • Witness. You’re delusional. Please have your doctor check you into the nearest clinic for psychiatric disorders and have him fill out a prescription for lithium carbonate. It’s a powerful anti-psychotic.

      • metropika….lithium is a mood stabilizer, not an anti-psychotic. Medications, such as halperidol are antipsychotics.

  7. And if it were the Liberals proposing it, it would be a remarkable bit of statesmanship.

  8. This is not ‘by stealth’, given they are asking the Supreme Court and they put their arguments in writing.

  9. Another academic who hates conservatives (small c) and probably teaches that way.
    I would love to see the Trudeau Liberals fight the 2015 election campaign with a defence of the senate as part of the Grit policy platform.

  10. Democracy demands suspicion. The framers of our government understood that fundamental fact. Democracy leaves a door open to unbridled populism and an attendant risk that voters may elect a scoundrel, or worse a team of scoundrels.

    Yes, the notion of an appointed body over-ruling an elected one seems offensive today, but the fact remains that our system has checks and balances of which one is the Senate; it isn’t just a check against a government, but democracy too.

    It isn’t surprising that people these days, so influenced by republicanism inherent in American culture, find the notion disturbing, but the Senate is just what it is supposed to be. The notion of reform or abolition is ridiculous.

    The Senate is supposed to function by a collection of cronies and hacks who are supposed to feel somewhat independent of party politics, or an allegiance to the PM who appointed them. Naturally, one assumes that their thankfulness for the perks and pay maintains their loyalty, but thankfully too, politicians are not moral creatures. They are scoundrels, as they are supposed to be.

    The problem isn’t the Senate. The problem is the unwillingness of politically astute observers and pundits to understand the purpose and role of that great institution. It is doing just what it is supposed to do. Our system of government is dependent on several ironies; this is just one of them.

    The underlying assumption is counter intuitive, but true. Democracy rests on power and the natural tendency for it to corrupt decent people. That insight, written so long ago by Baron John Acton (1834-1902), expressed a widely understood political reality in a letter to Bishop Mandell Chreighton in 1887: “Power tends to corrupt, and absolute power corrupts absolutely” and “Great men are almost always bad men.”

    Today, people consider such an opinion negative or cynical, but Baron Acton was more right than he knew. A democratically elected, majority government can be just as tyrannical and corrupt as the worst of European monarchs who ruled by war, oppression, and privilege. The institution of the Senate brings balance and essential second thought on legislation passed by the Lower House, which steadies Democracy in uncertain times; at least that was the peculiar notion that the framers of our political system imagined when they envisioned it.

    • That the founders of our country clearly recognized the importance of an appointed Senate, and that such importance is lost on so many political observers today is a mystery to me. In particular Andrew Coyne of the National Post. In fact, the question of elected versus appointed received extra special attention. That Harper has appointed Senators who are from Provinces where their ties are tenuous at best, but whose party affiliation and belief in fundamental party philosophy are tenacious, would seemingly be an end around the essence of appointing Senators who may actually believe that national legislation must not trump provincial interests without being filtered through the prism of those special provincial interests as represented by such Senators.

  11. So what’s the opposite of “factum?” I think “fictum” describes the Conservative presentation to the Court.

  12. With all due respect, the author either completely ignores or doesn’t have a clue how the doctrine of pith and substance works. His argument fails given an understanding of this doctrine.