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Senate reform? There’s just the teensy problem of the Constitution.

Both Stephen Harper and Thomas Mulcair have plans to reform the Senate that may prove unconstitutional. Now what?


 
(Sean Kilpatrick/CP)

(Sean Kilpatrick/CP)

After the Supreme Court of Canada ruled last year that his unilateral push for Senate reform wasn’t allowed, Prime Minister Stephen Harper might have been expected to take pains to stay within constitutional bounds in any future bid to overhaul the upper chamber. Harper had tried to move alone on imposing term limits and electing senators, but the court said he needed support from seven provinces with 50 per cent of the population. Harper seems undaunted, though. His new strategy is to refuse to name any new senators. And some experts say that’s not permitted under the Constitution, either.

Harper had already let 22 vacancies go unfilled in the 105-seat Senate before he announced, in a news conference last week with Saskatchewan Premier Brad Wall, that he will let attrition keep hollowing out the place as its patronage appointees die or retire. “It will force the provinces over time,” the Prime Minister said, “to either come up with a plan of comprehensive reform, or to conclude that the only way to deal with the status quo is abolition.”

Related: Let the countdown to a constitutional crisis begin

Harper didn’t explain exactly why dwindling Senate ranks will alarm premiers so much that they will finally coalesce around a common reform or abolition plan. In fact, Harper even said senators don’t really do much now for their home provinces. It came up when he was asked if provincial governments might object to his refusal to fill vacancies from their turf. “The number of senators [that provinces] have today, in the current institution, gives no real weight in Parliament,” he said. “Decisions are made, for all practical purposes, in the House of Commons.”

Beyond the paradox in Harper’s position—senators are useless to provinces, yet premiers won’t tolerate empty Senate seats—are serious doubts that the Constitution permits this course of inaction. “I think that for him to refuse to appoint senators is manifestly unconstitutional—he can’t do that,” said University of Ottawa law professor Carissima Mathen. University of Waterloo political science professor Emmett Macfarlane, author of Governing from the Bench: The Supreme Court of Canada and the Judicial Role (and a Maclean’s contributor) agreed that naming new senators is “absolutely an obligation” for any prime minister.

Related: Stephen Harper adjusts his Senate strategy

That obligation is set out in the Constitution Act, where Section 32 says, “When a vacancy happens in the Senate by resignation, death, or otherwise, the Governor General shall . . . fill the vacancy.” By convention, of course, the Governor General acts only on the Prime Minister’s advice. Beyond this requirement, there’s the Senate’s constitutionally defined role, which includes representing provinces and regions and reviewing legislation passed by the House. If Harper leaves the Senate with too few members to do its job, Macfarlane says he will be “unilaterally impairing its essential function.” And that isn’t likely to survive a legal challenge.

But it will take a court, in the end, probably the Supreme Court, to make that ruling. Aniz Alani, a Vancouver lawyer, had already launched a case to try to force Harper to appoint senators before he made the moratorium an explicit policy. Mathen says judges might have been reluctant to come down firmly against the Prime Minister, if the case forced them to interpret what lies behind his reluctance to fill Senate vacancies and consider how quickly constitutional convention requires him to act. But, now that he has openly framed his refusal to name senators as a tactic for bringing provinces to the constitutional bargaining table, the facts that any court will confront are less ambiguous. “With his open avowal that he doesn’t think he has a duty to appoint, that’s where it gets tricky,” Mathen says. “Now, a province like Prince Edward Island or Manitoba can say, ‘He apparently has no intention of fulfilling our allotment under the Constitution.’ ”

Remarkably, Harper is not politically isolated in his willingness to just let the Senate wither. NDP Leader Thomas Mulcair has said that if his party wins this fall’s election, he would negotiate with the provinces to try to reach the unanimity needed to scrap the Senate—likely a long, hard slog—and would not appoint senators while he tried to win every single premier over to the NDP’s long-standing position. But the NDP has also suggested a more direct assault on the Senate’s ability to function: cutting off its funding. A motion tabled by Manitoba NDP MP Pat Martin to deny the Senate $57 million of its total 2015-16 budget of $88.7 million was voted down by Liberal and Tory MPs in the House early last month. “So Harper and Mulcair are on the same page now,” Macfarlane says. “We have a very rare situation, maybe unprecedented, where the Prime Minister and the official Opposition leader are advocating plainly unconstitutional action.”

That leaves Liberal Leader Justin Trudeau playing the only hand on Senate reform that stays safely within the constitutional rules of the game. Early last year, for starters, he kicked Liberal senators out of his parliamentary caucus. If he becomes PM, Trudeau vows that his Senate appointments would be guided by a new “independent-minded, non-partisan” panel’s recommendations. If his position doesn’t generate the I’m-fed-up heat of a moratorium on appointments or an abolition pledge, it has the advantage of being constitutionally allowed and politically doable. The question is whether Trudeau, now trailing at third in the polls, can turn a practical alternative into a campaign-trail asset.


 

Senate reform? There’s just the teensy problem of the Constitution.

  1. What Mulcair says is he is going to get the premiers to agree. What he MEANS is he is going to enter into constitutional negotiations. He simply does not say what he means. My guess is that is because some people are going to link his support for the Sherbrooke Declaration and his desire for constitutional reform and be reminded of the last time a prime minister tried to negotiate a constitutional amendment. In his book he blames the liberals for the last Quebec referendum, which he well knows was the result of that failed constitutional negotiation process.

    Harper is just as dishonest. In the typical conservative fashion he is refusing to take responsibility for his failure and making it someone else’s fault. So according to him it is the responsibility of the provinces to fix the “problem”, despite the fact that problem was exacerbated by his poor judgment in selecting senators in the first place. Has Harper ever taken responsibility for any of his mistakes/missteps? Ever?

    • Mulcair is stymied because Quebec, his main support group, is never going to allow him to chuck the senate. As for Harper making bad choices, don’t blame him for the many mistakes of all prime ministers. Remember the Liberal who never attended the senate but once a year to collect pay but lived in mexico? It is a problem when senators are appointed because of who they have been perceived as public figures. all “seemed” good choices at the time. Harper always wanted an elected senate but was not able to get it.

      Now what to do about the senate may be left to the people of Canada. We own the constitution not the courts or the politicians. If enough pressure is bought to bear we can dump the senate (my choice). How, let the media help. Put a push to dump the senate and let every media outlet join in. Hell it is what the media does in this country when it wants to replace a PM. Time for people and media to dump the senate………….start the rally cry.

      • I blame Harper for his appointments, and I’m not going to give him a pass because other PMs did the same thing. But more to the point, I blame Harper for making this an issue by lying, over and over again, about how he will solve the “problem”. Why did he try to pass all those meaningless and obviously doomed senate bills before finally making a referral to the SCC? Could it have anything to do with the fact his party has been able to fundraise successfully by telling their supporters that the other parties, or the SCC just won’t let them do what he wants to do?

        Is it not the height of hypocrisy to bash the senate as a crass patronage tool, and then appoint Mike Duffy, who used tax money from the senate expense accounts to pay for the trips he made to fundraise for Harper?

  2. The constitution has a deep-seated flaw, and that is the amending formula. The US Constitution has a fairly rigorous amendment protocol. In spite of that, there have been 26 amendments to the US Constitution. In the meantime, our political class routinely proclaims that opening the constitution is off limits in spite of changes that are wholly necessary simply due to shifts in population, etc. One simple but very necessary change is the addition of some form of citizen-led path to constitutional change. Yet even that, I fear, would be treated with disdain or abject fear by the politicos.
    Constitutional change can be done, and some is necessary simply in order for the nation to survive and move forward. Unfortunately, the only way it’s going to happen is if a strong PM or a strong provincial premier with the leadership skills and personality to browbeat the provinces into a couple of simple, small changes.
    That’s called leadership. Sadly, I don’t see much of that happening.

    • We have amended the constitution, and will do it again. The reason politicians don’t want to do it now is legitimate. So long as there is separatist sentiment in Quebec, reopening the constitution is a risk.

      It isn’t the media’s job to make this happen.

      • There will always be separatist sentiments in Quebec. There is a window now, with the most federalist premier I have known in my sixty-plus years in place for a few years, at least. There will be no abolition unless all provinces agree to a considerably different federal arrangement. In order to get there, we need strong leadership from federal politicians. We’re talking about reforming federal institutions here, and federal politicians will need to vote on a new arrangement and will be responsible for the good functioning of the Canadian parliament. It’s not the time for federal politicians to hide in the closet.

  3. It is a sad thing to read, but it’s true. Both the prime minister and the leader of the opposition are openly telling us they will refuse to respect the letter of the constitution. I can’t imagine an American politician saying this, and getting elected. Mr. Harper claims he is under no obligation to recommend a nomination to the Senate because the Quorum Rule (s. 35) means, he claims, that the Senate needs no more than 15 Senators to exercise its powers.

    Does he think he is under no obligation to call a by-election to fill a vacancy in the commons because the Quorum Rule (s. 48) means the House of commons needs only twenty members to exercise its powers?

    Such belief come in handy if his majority was greatly reduced. Or if he had a minority.

    Which brings me to a question I hope a journalist will ask, and probably only one whose organization was not dependent on the Action Plan funding could ask: if your party does not get the greatest number of seats in the commons will you immediately proceed to submit the resignation of your government to the GG ?

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