Harper and the Senate: Without a plan

The prime minister’s questions for the Supreme Court show he has a vague plan to do something, writes Paul Wells

Stephen Harper’s decision to send a long list of questions on Senate reform to the Supreme Court of Canada — all the stories say six questions, but two are multiple-choice, so I count 14 — reflects an advanced state of uncertainty about how to handle Parliament’s upper house.

Since Harper campaigned for his job seven years ago on a promise to elect senators, and since he has had his majority for nearly two years but is only now asking the top court questions that must surely have preoccupied Justice Department lawyers since at least 2006, his decision indicates he is still improvising on a non-trivial constitutional file.

Actually, I have always kind of liked this dishevelled approach to the Senate-reform task. After the 1992 Charlottetown referendum, Jean Chrétien had a ready-made answer on the Senate: I was all in favour of a Senate reform that would have given the West more clout, but the people rejected it, he’d say. Chrétien and Stéphane Dion and, after the customary vague period, Paul Martin all said a piecemeal reform would freeze a dysfunctional upper house in place. Only wholesale reform would fix anything. And since that was impossible, why bother?

From where Harper sat, that line of argument was repulsive. He always heard it as Let’s do nothing to reform an unelected patronage house that drives a lot of resentment in much of the country. So his most consistent position has been that anything would be better than the Senate we’ve got. “This party’s preference is to see a reformed and elected Senate, but the Senate must change,” he said in 2007. “If the Senate cannot be elected, then it should be abolished. Those are the choices.” This has the advantages of being the opposite of what Liberals say; of sounding impatient rather than complacent; and of sounding flexible about outcomes. You’re welcome to debate the two sides’ relative moral superiority in the comment boards, but to me, between the team with a clear plan to do nothing and the team with a vague plan to do something, it’s hardly an easy pick.

The prime minister’s hope seems to have been that he could make some small change to Senate composition, blow the system’s equilibrium, and seek advantage in the resulting free-for-all. (Meanwhile, of course, since 2009 he’s appointed an army of senators under the old rules, with many of the old results.) His problem is that he hasn’t managed to shake the system up at all. All he’s done is get Quebec’s government to challenge his reform project in court. The Quebec Liberal justice minister who launched that case used to be Michael Ignatieff’s principal secretary, so of course Christian Paradis was quick to badmouth him as out of touch with Quebec popular opinion. But that’s fixed. Now the new Parti Québécois government has inherited the Quebec court challenge, and nobody there worked for Ignatieff, and now parties representing 104 of Quebec’s 125 provincial ridings have joint ownership of this legal challenge, so Christian Paradis is outnumbered.

Harper has gotten very far depending more on endurance and his gut than on extensive planning. Muddling through is an underrated way to go about the job of running a government. It’s almost the only way that works, as Harold Macmillan knew. But some challenges are more suited to incremental improvement than others.

If the court even accepts all of the 14-part reference, and reports in a timely manner, and indicates any way the feds can unilaterally change the nomination process and term length of senators — even if all of those variables break Harper’s way, it’ll still be hard to get far by treating the senate as an issue Harper can nudge forward on slow days and ignore on busy days.

 

 




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Harper and the Senate: Without a plan

  1. Typo – two siDes.

  2. I’m glad the chess game is over.

    • Not chess game so much as Chinese checkers played by a blind man who tried to improvise new rules as he went along.
      Looks like a guy who’s got the engine disassembled on the garage floor, and now decides to call a mechanic. ( to mix metaphors)

      • Sums it up well though.

  3. I still don’t understand the endgame for Senate reform. The only people who seem to be pushing for it are conservative westerners. Imbuing the Senate with democratic legitimacy means permanent under-representation for the West in a newly powerful Senate, essentially transferring power from the West (and to an extent, Ontario) to Atlantic Canada.

    You might be able to change the nomination criteria and jury rig an elected Senate without a constitutional referendum, but good look forcing Ontario, Quebec and the Atlantic to surrender power to the West.

    • There is one Canadian political party that has a simple solution to the problem of an appointed, unelected ‘Upper’ House – Abolish the damn thing! Sheeeesh …

      • I’m not sure that is politically feasible either, given the amending formula.

      • If the NDP ever form a government their seemingly simple plan is going to run up against the same political reality that Harper’s plan has. Namely, the Senate is so entrenched and adds such marginal value but also causes such marginal harm, that the energy required to change it is not worth the effort; plus the Senate itself pretty much holds a veto on any changes given the Constitutional amendment requirements.

  4. harper is just showing canadians he is doing something,but doing nothing, its called smoke and mirrors(known as the harper goverment policy).this is for reporters like mcleans and others to get off his(harper) back. and all you jounos and reporters fall for it everytime(you guys are so niave) .you know the supreme court are not going to deal with this matter.this will come back to parliment.

    • Not sure if you’re overrating Harper or selling our nation’s scribblers too short?

    • I don’t think the Supremes have any choice but to deal with it. it is important for the country. The Senate needs to be changed or abolished. Abolishing it would require a fundamental change to our parliamentary system and I don’t think any government wants that including the NDP despite its rhetoric.

      • you need to look up the words ” needs”. You seem to think it means “something I think I want”

        • So you believe that an unelected governing body, in which senators hang on to their positions until they turn 75, and in which certain provinces are ridiculously under-represented due to a gerrymander-like notion of “regions” is perfectly OK?

          • Whatever changes I may approve of, I realize our country will continue to exist if it stays in its current form. hence misuse of the term “needs”.

          • holinm did not claim the country needs senate reform or abolition for the sake of its existence. The country could need this for any number of reasons (e.g. to help address a democratic deficit, as a matter of simple fairness).

          • Except he didn’t claim it needed it to help address a democratic deficit either. He just said it “needs to changed or abolished” as an absolute or a matter of fact.

            But it isn’t an absolute, nor a matter of fact. Because things will keep humming along just fine if it isn’t changed at all. That’s the problem that GFMD was pointing out.

        • I may be wrong but I think there is an obligation on the part of the Supremes to review requests by a government on a priority basis. That’s why the election results of Opitz and Borys W. were reviewed so quickly. I can stand to be corrected. However, it appears that you are satisfied that the Senate is undemocratic, is filled with partisans, not equal and Senators serve to age 75. Not to mention some do not appear to have any qualifications for anything.

          • But hearing references is at their discretion (i think it’s s. 52 of the Supreme Court Act). They even have full authority to not answer at all, as they partially did when P. Martin asked about gay marriage.

            to the extent you actually did just misunderstand the nature the court’s obligation, my tone was inappropriate and is withdrawn.

          • Thanks for the explanation.

          • Then what does this mean? Point 4….it is the duty of the Court…..

            (2) The Governor in Council may refer to the Court for hearing and consideration important questions of law or fact concerning any matter, whether or not in the opinion of the Court ejusdem generis with the enumerations contained in subsection (1), with reference to which the Governor in Council sees fit to submit any such question.

            Marginal note:Questions deemed important

            (3) Any question concerning any of the matters mentioned in subsections (1) and (2), and referred to the Court by the Governor in Council, shall be conclusively deemed to be an important question.

            Marginal note:Opinion of Court

            (4) Where a reference is made to the Court under subsection (1) or (2), it is the duty of the Court to hear and consider it and to answer each question so referred, and the Court shall certify to the Governor in Council, for his information, its opinion on each question, with the reasons for each answer, and the opinion shall be pronounced in like manner as in the case of a judgment on an appeal to the Court, and any judges who differ from the opinion of the majority shall in like manner certify their opinions and their reasons.

  5. “If the court even accepts all of the 14-part reference, and reports in a timely manner, and indicates any way the feds can unilaterally …”

    Isn’t that awfully close to whistling for a wind?
    The way I read it is…’I'm stuck help me out SCoC by doing for me what you wouldn’t do for Trudeau back in the day. ‘ As a Hail Mary this strikes me as an admission of failure, or at least a cry for help – help I can’t see him getting.

    • Hey the opposition have been screaming for a reference to the court and in fact are persuing their own legal challenges to stop whatever reforms that Harper may want. To suggest that Harper hasn’t thought this thing through is ridiculous. As usual he does not share much on the subject or anything else for that matter.
      So Harper has given the opposition what they want. As Wells says if everything goes his way and the Supremes answer is clear what then? Do we really want a Senate loaded with partisans from every party who are in competition with the House of Commons. We already have that but most of them are on the government side. How does that help anything?

      • That’s your take. But you assume [on a lazy bit of analysis imo] that you have Wells pegged as totally on side.

        “If the court [even] accepts all of the 14-part reference, and reports in a
        timely manner, and indicates any way the feds can unilaterally change
        the nomination process and term length of senators —[ even] if all of
        those variables break Harper’s way, it’ll still be hard to get far by
        treating the senate as an issue Harper can nudge forward on slow days
        and ignore on busy days.”

        You can’t claim sole ownership to the word [even] Probably why he wrote it twice – just for you? Even threw “hard” in there for good measure.

        And the preceding sentence has some bearing too – ” But some challenges are more suited to incremental improvement than others.”

        . No where in the piece does it say or even hint that Harper has thought this right through. I read it as brave to try and better than nothing, but you may need to put more collaborative and sustained effort and thought into this one. It also seems to say that he provoked the QC response as much as anything due to his – do as i say, but don’t let my hypocritical attempts to manufacture more dysfunction in the senate and end run the constitution – bother you at all. Predictable response. So, yes in a roundabout way he is giving the opposition what they wanted. That at least is a good…5 years overdue, yay!

        Presumptuous [ did i use it right this time Wilcox? :) ] on my part, maybe, but reading comprehension is key.

        • I don’t speak for Wells or anybody else either than myself. I think Wells falsely believes that Harper hasn’t thought this thing through and is going by his gut. That would be a wrong assumption if you have followed the career of Stephen Harper.

          • Sure… how many books on Harper is that you have under your belt right now?

          • It’s fair of hollinm to say he and I have different analyses of the PM, but I don’t own the big guy. Other analyses are permitted and encouraged. hollinm may be right that there’s a plan I haven’t perceived. I just haven’t perceived a plan.

          • Fair enough. Although I think you’re being a little too modest myself. Much as I detest Harper I find you have the most interesting and balanced overview of the guy – even if it makes me grind my teeth now and then. Helps to keep my view of him a little more grounded. Nothing wrong with that. Take a well earned bow sir.
            Edit: oh yeah, got the message loud and clear. Different perspectives welcome.

          • out of curiosity …if you detest Harper…who would you prefer in his place…just askin

          • Good question. Right now I don’t know. I have some hopes for JT but he still has big big learning curve and questions about his judgement. Mulcair I find fine, but I’m not convinced he’d be a lot better than Harper, and his parties policy in QC is a disgrace.
            It’s too late for my good opinion now, but as Wells likes to say – I expect better governance from the govt we presently have. As far as Conservatives go I could have been relatively happier with someone like Prentice.

          • Fair enough.

          • What foolishness. You can do better than this.

          • You have followed Harper’s career more than Paul Wells has? Isn’t he writing a book about the fellow?!

          • I have no idea.

    • I’ve often stated how out of touch Harper is with certain realities because of his Calgary-school political sciencey background. Steeped in the pseudoscholarly works of Morton and Brodie (who was his chief of staff, recall) without the necessary counterweight to grasp how ill-conceived those texts are, it’s not hard to think Harper legitimately, wholly believed “I can do this the way I want to because courts are illegitimate liberal star chambers who can’t stand in my way.” Seven years later he may have finally realized that if what he wants to do is unconstiutional, they certainly can. If true, it’s nice to see the most powerful politican in the country arrive at a notion pretty clear to any undergraduate polisci student outside Alberta.

  6. “After the 1992 Charlottetown referendum, Jean Chrétien had a ready-made answer on the Senate: I was all in favour of a Senate reform that would have given the West more clout, but the people rejected it, he’d say. Chrétien and Stéphane Dion and, after the customary vague period, Paul Martin all said a piecemeal reform would freeze a dysfunctional upper house in place. ”

    Wasn’t that a bit presumptuous of JC? After all Canadians rejected CT and Meech for a bucket full of reasons, why just pick one?
    And the way it looks right now those liberal naysayers look like they knew a thing or two about piecemeal band aid reform attempts, no? Although I don’t know if impossible is Dion’s present opinion.

    • Wasn’t that a bit presumptuous of JC?

      Not sure that presumptuous is the best word, but yes, Chretien misrepresented the results. I find it hard to believe that he did so inadvertently. One of Chretiens less endearing qualities.

      • Presumptuous is a word it’d be fun to see JC mangle…but he was certainly one to not rock boats if he thought he could get away with it. It was a side of him i least liked also.

  7. How many provinces equal critical mass? Alberta elects Senators, while BC, Sask and NB have commited to pass legistlation to have elected Senators as well. If you get 2 of those onside, all of a sudden Harper’s job just got a lot easier.
    Then the question becomes ‘why do those provinces while our province (whichever province that may be) only gets apponted hacks’

    • None of those past senate elections were likely taken very seriously. Several of those ‘elected’ senators are also being appointed years after the actual elections and who knows if they’d still be chosen if we were to have another election right now?

      The big problem with any attempt to reform the senate is that the main rules regarding its composition exist within the constitution. Any law passed including senate elections, or even Harper’s attempt at term limits probably won’t have legal teeth since they would not be constitutional. Legally a Prime Minister would have no obligation to appoint any ‘elected’ senator. As for term limits all it would take is a senator to decide they like the position and don’t feel like retiring and there is nothing to be done about it because legally they don’t have to retire until they are 75. Some of Harper’s appointed senators have already indicated they won’t retire after the 8 year term limit is up, even when they signed a statement that they would do so since it isn’t in the constitution.

      Lastly we still have to deal with the reality of the uneven representation of the senate. Electing senators would probably give more weight and a stronger mandate to what otherwise is pretty much just a review body. Do you really want an empowered senate when a province the size of say New Brunswick still has more seats than Alberta or BC?

  8. The House of Commons is nothing other than, a laughable farce. Overruled by a tyrant dictator, at every turn.

    Canada is rotten to the core with, corruption, lies, deceit, thefts, dirty tactics, dirty politics and, cheating to win. Any province that has a lick of sense, would get the hell out of Harper’s Canada. However. Canadians are known to sleep through everything. That’s what Harper can count on. He does all kinds of dastardly deeds, behind closed doors.

    • Your first sentence was great.

      Kinda went off the rails after that, though.

  9. Hon. Stéphane Dion (Saint-Laurent—Cartierville, Lib.):

    “Mr. Speaker, the Senate reform bill, Bill C-7, is a unilateral
    attempt to impose on Canada a stalemate between two elected chambers in
    addition to terribly under-represented Alberta and British Columbia.
    Dangerous for Canada, the whole plan is on shaky constitutional grounds.

    Will the Minister of State for Democratic Reform announce today that
    this ill-conceived Senate reform will finally be referred to the Supreme
    Court, something the Liberal Party has been requesting since June 2007?

    Hon. Tim Uppal (Minister of State (Democratic Reform), CPC):

    Mr. Speaker, we will take no advice and no lessons from the Liberals.
    That member, in the time that his party was in government, did nothing
    to advance Senate reform. Our government tabled the Senate reform act to
    limit the terms of senators and to give Canadians a say in who
    represents them in the Senate. We are committed to making the Senate

    more democratic, accountable and representative of Canadians.

    I would remind the member that this legislation is already being considered by the courts.”

    Presumably Dion is referring to the QC case here. Is that even before the courts yet?

  10. 1. Abolish the Senate;
    2. Changing the electoral system for the House of Commons to proportional representation;
    3. Limit the ridings to 100 based on population with a minimal of one per province.

    If Harper can do that, that will be his legacy.

    • What was the point of number 3? We’re you thinking that “While I’m talking about unicorns and pixies, I might as well throw in Manti Te’o's girlfriend..”

  11. Perhaps Harper hopes that by appointing hacks in the present and electing senators in the future (creating a messy system where the body is legitimized but unrepresentative) it will create the public opinion necessary to do full reform.

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