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The Conservatives file their Senate reform factum

The government makes its case for moving forward on Senate reform


 

For the second time in sixth months, and having previously taken a step towards, moved forward with and then moved forward with again and driven and driven again, the Harper government has once again advanced Senate reform.

In this case, the government has filed its factums with the Quebec Court of Appeal and the Supreme Court as concerns each court’s references on the Senate. Here is the factum for the Supreme Court, here is the factum for the Quebec Court of Appeal and here is how Pierre Poilievre, speaking to reporters this afternoon, summarized the reference questions and the government’s arguments.

Let me summarize the questions we will ask the Court and the arguments that we will make to it.

We will ask: Can Parliament enact term limits on senators so that they serve eight or nine years rather than having a job for life? We argue yes.

We ask: Can Parliament set in place a democratic vote to recommend names to the Prime Minister for the Senate? We argue yes.

We ask: Can the provinces hold a democratic vote of their own to recommend names to the Prime Minister for the Senate? Again, we argue yes.

We ask: Can the Parliament remove antiquated property ownership requirements for senators? We argue yes.

Finally, we ask: Can we abolish the Senate without the unanimous consent of the provinces? We answer yes.

Here again is the Harper government’s reference to the Supreme Court.


 

The Conservatives file their Senate reform factum

  1. Stalling?

    • Well they are the majority and this will be a democracy again in 2015.

      • That’s the unique nature of the Canadian political system: it’s only a democracy if a party which self-styled progressives support is in power. If a party which self-styled progressives don’t like is in power, then it’s not a democracy. Amazingly, though, we have elections, and a history of different, opposing parties having alternate stretches in power. Even though we’re actually a dictatorship roughly half of the time. Or something like that.

        • Self-styled progressives don’t just dislike conservatives in power they also don’t appreciate arrogant use of the same to prorogue, to bully the Governor-General, to shove through massive bills that mask major changes to policy as mere “money bills.”

  2. Stupid evil Conservatives, what do they need to consult the SCC for?!?! Just abolish the Senate, who cares about the law of the land!!

    • Could you tell us what Harper would like to hear from the Supremes – it would help us understand what he actually wants to do with the Senate.

    • Harper would be very glad if he could ignore the SCC. He only asked for an SCC reference when the provinces made it clear that they would challenge any unilateral changes to the Senate.

      • Which is exactly what Pierre Trudeau did some 30-35 years ago when he made the patriation reference. He wanted to see if he could get around the requirement for consent of the provinces. But let me guess — when Trudeau did that, he was a noble hero; when Harper does it, he’s evil scum.

        • I’m making no value judgement. I’m just stating facts.

        • Trudeau got support of 9 of 10 provinces. That was enough to repatriate the constitution. He was right not caving into Quebec. Mulroney was wrong bending over backwards trying to get Quebec to sign on. Fact is most constitutional amendments require a super-majority among the provinces (7 of 10.)

          Trying to get around a constitutional amendment when reforming the senate is the wrong way to go. It’s time Canadians stopped acting hysterical when it comes to an amendment. One does NOT require “opening up the constitution.” It does NOT require QC signing on to the 1982 Constitution Act. (That matter is settled.)

          It’s time to stop fooling around and reform the senate the proper way — the way other developed countries would handle it. Either elect senators or get rid of them. Appointed politician is an oxymoron.

          • I’m in favour of abolition, so in that respect I’m in agreement with you.

          • Actually, Harper is arguing the same 7 & 50 formula you seem to favour. Provinces are arguing he needs unanimity.

            I do agree that trying to abolish the Senate without amending the Constitution is just plain daft, and one of Harper’s most untenable positions. I have no idea why he’s stuck to it this long.

            We should have some sort of elected and effective (not equal) Senate – with real powers to block legislation – but that will require a Constitutional amendment. Which politicians seem to be terrified of since Mulroney’s failures.

  3. If the Supreme Court disagrees with the government, the government can always abolish the Supreme Court, for if the existence of the Senate is part of the constitutional documents of the Canadian federation, the Supreme Court is not. It was created by an act of the parliament of Canada, in 1875, and can be abolished by parliament…

    • The Supreme Court has disagreed with the government lots of times (e.g., Securities Regulation reference), and the government’s response has not been to abolish the Supreme Court.

      • The point is that the government can and if democratic legitimacy is to be restricted to those who are elected, what is democratic about the Supreme Court?

        • “Democracy, however, means more than simple majority rule. Constitutional
          jurisprudence shows that democracy exists in the larger context of other
          constitutional values. ” – the Supreme Court

          An important of these values would be the rule of law. Good luck elminating the supreme court because it disagrees with a government.

          • Crypto-fascist neo-cons don’t attempt to kill the Supreme Court direct. They make corrupt Supreme Court appointments.

            That’s what happened in the US. That’s what’ll happen here if we don’t fix our voting system and stop the Conservatives from becoming the new natural governing party against the will of Canadians.

          • I do feel like our nation is currently teetering on the brink on a lot of governance issues, but I’m not ready to call harper’s supreme court appointments corrupt (killing the court challenges program was worse, although within the gov’t purview).

          • Ron, please name me a Harper Supreme Court appointment or appointee who is, or has been, corrupt.

          • Which of the current Supreme Court justices is a corrupt appointment? Thus far Harper has appointed four of them (I assume Harper is the “crypto-fascist neo-con” to whom you were referring) and I have yet to hear even one of them as being even mildly controversial within the legal community, other than perhaps the non-bilingual fellow from Newfoundland. He has tended to select judges that are not noteworthy for any sort of activist bent, but that much we expected (and some of us wanted).

          • Not that I am promoting the elimination of the Senate, but if the reasoning used for this is that its members are not elected, why wouldn’t it be a valid reasoning for them to eliminate the SCC? As for the rule of law, it is not limited to the SCC. If we are going the route that only the elected have democratic legitimacy, then eventually the SCC and all unelected judges would have to go.

          • I am not quite sure exactly what you mean when you say “reasoning used for this”, are you referring to the existence of the CSS or the Senate? Eliminating the latter would likely require a constitutional amendment, trying to eliminate the latter in a situation where it was clear you were doing it because of a certain decision is more dicey but might also very well require action at a constitutional level.

          • The reasoning I hear being used for eliminating the Senate is that Senators are illegitimate in a democracy because they are not elected.

          • that is indeed one of the argument and there is probably some truth to it but that doesn’t alter the procedural mechanism necessary to alter it.

          • The judiciary has long-standing recognition as being entirely separate from the legislative branch under the common law. The Senate is part of the legislative branch, not the judiciary. Now, if England wanted to eliminate the House of Lords, that would be a serious problem. The Lords ARE the supreme court in the UK. So the House of Commons would have one hell of a time pulling that off if they ever tried.

          • Also, anyone currently appointed by the government would need to be elected (including all of the several hundred thousand civil servants). Reductio ad absurdum applies.

          • “Also, anyone currently appointed by the government would need to be elected (including all of the several hundred thousand civil servants). Reductio ad absurdum applies.”

            If we elect senators we will have to elect civil servants? That argument is absurd alright… Except for Canada and the UK, all countries that have senates elect their senators. In a democracy, politicians are elected by people to represent them. Canadians, it would appear, are the most ignorant in the developed world when it comes to how democracy works.

          • The separation of powers between the legislative and judiciary branches has a long, well-entrenched historical precedent in English common law. A government cannot simply eliminate a part of the judiciary just because it isn’t explicitly mentioned in the Constitution. In a country with a Napoleonic legal tradition, perhaps government could do this, though it would still be very difficult. In countries with an English common law tradition, it can’t and won’t happen.

        • We live in a constitutional democracy. The function of the Supreme Court is to ensure laws do not violate the constitution. This should be the purview of the top legal minds in the country. That’s why it’s a bad idea to have a PM appoint SC justices, which can politicize the Court.

          The function of the senate, however, is to affect legislation. That’s why it must be made democratic or abolished. There is no such thing as a professional politician. In a democracy, people elect politicians to represent them. It makes zero sense to appoint them, especially with the corrupt partisan, cronyist process we’ve used since Confederation.

          • We live in a constitutional democracy – with a constitution that does not include a supreme court. The function of the senate is to listen to submissions and propose changes to legislation, but the elected members in the HoC have the last word because they are elected. Elect the Senate and that will change.
            I do agree that the appointment process we’ve used needs to be changed.

          • Every developed country that has a senate has elected senators (except Canada and the UK.) Those countries do not experience constant gridlock because of it.

            If we were to elect senators, we’d have to change the rules by which the senate could kill legislation. The US senate, for example, can’t kill legislation on a simple majority.

            Right now the Canadian senate has equal power to the House. But there are no explicit rules when it can meddle in legislation and when it can’t. It can kill an environmental bill. It can kill a union transparency bill. It can play politics and thwart legislation to score partisan points (like with the GST and Free Trade Agreement.) It’s behavior is erratic.

            Harper’s senate could very well take a more active and obstinate role when the Liberals or NDP form the next government. What’s to stop them? The threat the House will abolish the senate or elect senators? Wouldn’t be much of a threat coming from the Liberals.

          • Some countries with elected Senates do experience gridlock. See the US.

            Also, countries with elected Senates usually have constitutions designed to accomodate an elected Senate. Trying to jerry-rig an elected Senate out of an appointed one is asking for trouble. We have little provision for resolving gridlock, unlike countries like Australia.

          • The US experiences gridlock on some cases because it has 3 branches of legislative government. The “problem” is when there are different parties in control of the presidency and the House of Representatives. That is roughly the equivalent of a minority government.

            This gridlock actually forces parties to work together towards some compromise. Of course in Canada we dole out absolute corrupt power to minority parties creating a dictatorship with no checks or balances.

            Canada is the only country where people get hysterical about a constitutional amendment. When the Supreme Court rules on senate reform I can guarantee you it will not make Quebec signing on to the 1982 Constitution Act a prerequisite.

          • People in the US get hysterical about amendments, particularly wrt firearms.
            Canada and the US has the same basic structure.

            A bicameral legislative branch, a judicial branch and a executive branch. The executive branch is selected by a majority of the HoC and by tradition sits in the HoC.

          • Americans get hysterical about the potential violation of a particular constitutional amendment, not about implementing a constitutional amendment (which they have done 27 times.)

          • “Americans get hysterical about the potential violation of a particular constitutional amendment, not about implementing a constitutional amendment (which they have done 27 times.)”
            Oh I don’t know about that, Ron. A lot of Americans got pretty hysterical about the Equal Rights Amendment (ERA). Which is why it never passed. Remember?

          • There was strong debate over the issue. They weren’t getting hysterical over the idea of passing a constitutional amendment.

            This bizarre Canadian phenomenon is predicated on a misunderstanding of recent history. Just because Mulroney tried to pass big constitutional packages containing multiple constitutional amendments to get QC to sign on to the 1982 Constitutional Act, doesn’t mean we have to repeat the process to pass a constitutional amendment. It’s utter nonsense. It’s also utter foolishness to attempt to bar Canadians from ever amending our constitution again because of Mulroney’s constitutional bungling.

          • Agreed. The whole idea that the Senate can be reformed without a Constitutional amendment is perhaps the most untenable position Harper has ever taken on anything. It makes NO SENSE. Yet he sticks to that position still. We need the moral courage to amend the Constitution when it needs amending. Certainly the Senate qualifies as a needed amendment.

          • We do not need two layers of populist bullshit. An elected senate would be a vestigial organ of parliament upon the very moment of its inception.

            Far better to reform it into a non-partisan technocracy in order to increase its ability to protect our fundamental freedoms, as it has when rejecting draconian changes to copyright law and privacy laws the current Con Regime has tried to make. It would be difficult to create a senate of cronies if all appointees to the senate were required to refrain from any partisan activities and had to meet certain job criteria.

            The unelected senate’s ability to stand up against a majority parliament’s excesses clearly demonstrate its value, while the widespread capitulation of all those under Harper’s thumb demonstrates the horror of what would happen if he gained full control over his party’s senators.

            If the current Senate had broad powers, I might agree with you Ron… But we have a “weak senate”, that merely has the ability to act as a bulwark against abuse. In a first past the post system of governance, that’s desperately needed.

          • ‘ a non-partisan technocracy’ eh? Hmmm I like that.

          • I like the idea of keeping an appointed Senate, but using a more broadly inclusive selection committee to make it difficult to appoint cronies. I also like a provision requiring the avoidance of overtly partisan activity (ie, fundraising for a party, campaigning for it, or caucusing with it).

          • “We do not need two layers of populist bullshit. An elected senate would be a vestigial organ of parliament upon the very moment of its inception.”

            Interesting interpretation you have of democracy. Of course you are part of a small minority among developed countries.

            The senate is already a “vestigial organ of parliament.” The purpose of the senate is to give regional representation at a federal level. Instead we have a federal PM appointing partisan cronies and federal party leaders whipping senate votes. If senators were elected by the provinces they would actually represent provincial interests and be accountable to the people.

          • “Far better to reform it into a non-partisan technocracy in order to increase its ability to protect our fundamental freedoms, as it has when rejecting draconian changes to copyright law and privacy laws the current Con Regime has tried to make.”

            The senate has no such mandate. It’s the role of the courts to protect our fundamental freedoms. There’s no such thing as a professional politician. You can’t go to politician school and pass the politician bar. So it makes no sense to claim the senate can somehow become a “technocracy.”

            In a democracy, people elect politicians to represent them, legislate bills and govern. Appointed politicians have no mandate from the people to fool with legislation. There are also no guidelines that govern when the senate can kill legislation. One can only describe its meddling in legislation as erratic.

            Last, all the people who put forward their pet idea of how the appointment process can be magically transformed are ignorant of the fact that the PM has the constitutional right to appoint senators. Therefore, even that requires a constitutional amendment (time to get hysterical…)

          • If you think non-partisan politicians are so superior to the partisan variety, then please do examine what goes on at city council meetings. I can’t say they’re any worse than provincial or federal legislatures, but they certainly aren’t any better.
            As for your ‘non-partisan technocracy’, that sounds an awful lot like some sort of council of wise men, completely unbiased (yah right) and unaccountable to anyone or anything. You just described a bank of computers, not a governing body of human beings.
            Plenty of countries have elected senates that work. There is no reason why we can’t. We just need to determine what Senate we want, and then amend the Contitution to implement it. Easier said than done, but it’s been done before by many other countries.

  4. 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.

    • No doubt, the senate was originally an aristocratic institution comprised of upper class Canadians to keep a lid on democracy. That’s what John A. MacDonald actually meant by “sober second thought.”

      Of course that was back in the 19th century when democracy was still in its infancy. In the 21st century, people find this kind of aristocratic sentiment appalling.

      In the post-war era, the senate ceased to function as an institution of aristocrats. The cronyism was applied to friends of elected politicians, not upper class Canadians. That’s how it became the useless mess it is today.

      Forget aristocracy. Forget partisan cronyism. Forget the idea of professional politicians (an oxymoron if I ever heard one.) As Churchill said, democracy is the best of all worse alternatives — including the ones listed above.

  5. …Can Parliament set in place a democratic vote to recommend names to the Prime Minister for the Senate? … Can the Province hold a democratic vote…

    This is just too close to the fixed elections date – and we all know what happened. If the provinces are to pay for and hold democratic votes there has to be an assurance that the prime minister will be obligated to recommend those who have won the election.

    …Can we abolish the Senate without the unanimous consent of the provinces?…
    I gather the government feels it has to negotiate the abolition of the Senate with the provinces and gain the support of 7 out of 10?

    • The PM has the constitutional right to appoint senators. (As ridiculous as that is: the PM is the de facto head of state who almost always represents a minority of voters and is indirectly elected.) So that means ANY ;type of senate reform — elected senators, abolition or “improved” appointments — will require a constitutional amendment. So instead of fooling around, wasting time and getting nothing done, let’s do it right.

      It’s time for Canadians to stop acting hysterically over an amendment. One does NOT require QC to sign onto the 1982 Constitutional Act. It wasn’t required in the first place. That ship has sail, caught fire, burned up and sunk to the bottom of the ocean. So it’s completely and utterly irrelevant to any type of worthwhile senate reform.

  6. What will happen when an elected Senate becomes Liberal dominated and the House is Conservative dominated? Would the house have the power to over rule the Senate?

  7. The Senate is a useless remnant from 1867 when the powers that were , thought democracy needed to be keep in check by senior appointed wise men. What a terrible joke it has become. Abolish it yesterday. You do not reform something this useless and clueless.

    • Most senate supporters have absolutely no clue what its actual function is supposed to be (regional representation at a federal level.) They are a bunch of nervous Nellies fearfully clinging to a useless institution. Let’s hope ignorance and cowardice don’t prevail.

  8. Abolishing the non-elected Senate. Great. Do it now and replace it with a council of big city mayors who meet seven times annually for 72 hours to review proposed government bills and either accept or reject them — the rejected ones being allowed to pass after three consecutive rejections, meaning at least two or three months have passed, allowing the Commons to review the new messes they are proposing.

    As for anything urgent, like a declaration of war, War Measures Act action, declaring a major economic overhaul in the event of a global depression, etc., well, all these things can also wait a couple of months. Nothing is so big or so complicated that it can’t be delayed or run away from!

    • “replace it with a council of big city mayors”
      Yeah, I’m sure that all of those Canadians who don’t live in big cities will just love that.

  9. Term limits….similar to parliament 4 years but if they are re-elected fine, but they need to have regular elections. No job for life!!!

    Get rid of the archaic property ownership law, yes.

    Provinces submit some names…just at the beginning then all elected. Those positions for 2 years only, so that we have a rotating vote, every 4 years there is election but only half of the senate up at any time, similar to the US….permanent positions…NO!

    Prime Minister still picking who gets to be a Senator…..NO!
    We want it totally elected, effective, and not hand picked!

    I think all the provinces would vote yes on abolishment of the senate anyway, but it would be proper to ask first!

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