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The Supreme Court Senate reference: Hope and hard work

Paul Wells on a court case ‘straight out of central casting’


 

(Adrian Wyld, The Canadian Press)

Everyone who argued at the Supreme Court today in the federal government’s reference on Senate reform was straight out of central casting. The Quebec lawyer was elderly, crusty and wise, a sort of Laurentian Morgan Freeman. The Ontario lawyer was crisp and not terribly interesting. The Nova Scotia lawyer began by listing everyone he agreed with.

And the federal lawyers? They looked a little like the junior officers on the command decks of Imperial star destroyers who keep getting strangled by Darth Vader in The Empire Strikes Back. Those guys faced a similar mismatch between their instructions and the task at hand. In the present case, the federal Justice Department lawyers were sent to their task with a news release from Democratic Reform Minister Pierre Poilievre seeking “a legal instruction manual on Senate reform and Senate abolition. Canadians have waited 146 years for the Senate to change,” Poilievre continued. “This reference to our nation’s top jurists will light the way.”

Unless it doesn’t. Behind the lawyers were their federal government employers. In front was a row of unimpressed justices in red ermine. Between them, that rock and hard place provided the sort of comfortable fit they always do.

“Are you seriously suggesting,” Justice Thomas Cromwell interrupted federal lawyer Robert Frater at one point, “that the implementation of consultative elections for a Section 96 judge would not have the effect of amending the constitution?”

Let us translate. Frater had been arguing, on the Harper government’s behalf, that “consultative elections” to select Senators would not be a big deal, as the elections would only offer advice to the Privy Council — the government — which would in turn advise the Governor General, and that both would be free to ignore the advice. So no the change could be implemented through simple federal legislation, without consulting several provinces or seeking their approval. Cromwell wanted to know whether other federally-appointed officials, such as provincial Superior Court judges, could also be elected. Frater strode boldly into the trap Cromwell had set for him. Sure they could, he said. Then Cromwell leaned forward and bit Frater’s head clean off.

The thrust of that whole exchange was that Cromwell seemed to be arguing that Ottawa sure does need some amount of provincial input and approval before implementing elected senators. Other justices seemed, equally clearly to my ears, to argue that term limits for senators are also too big a change to be passed unilaterally by the feds. (“You can never tell what a judge is thinking by the questions he asks,” I wrote once in The National Post during an earlier set of Supreme Court escapades. A veteran lawyer wrote to me: “You can always tell what a judge is thinking by the questions he asks.”)

The first day’s arguments will be followed by more on Wednesday and Thursday. Almost none of what happened was a surprise. There are two schools of thought on the manner of Senate reform (as opposed to its substance): some would like it to be easy, while others would like it to be the product of a broad national consensus. By “some” here, I mean “the Harper government,” and by “others” I mean “just about everyone else.” Federal lawyers are urging the Supremes to advise that Senate elections and term limits can be implemented by Parliament acting alone. They also want Senate abolition to be declared possible with the consent of as few as seven provinces.

Ontario and Quebec argued today—and the Quebec Appeals Court has already ruled—that term limits and elections require the consent of at least seven provincial legislatures representing half the national population. And they argue that abolishing the Senate would require unanimous provincial consent.

This would be really hard, and therefore a drag. It fell to Jean-Yves Bernard, the Quebec government lawyer, to chide anyone who would say that’s a reason to prefer federal unilateralism. It’s not because a given path would be difficult that it would not still be the required path, Bernard said. “Sure, let us do it, if it is what we want to do,” he said about reform projects, “but let us do it in conformity with the Constitution.”

The specific constitutional document Bernard was referring to (Canada has a few), of course, was the Constitution Act, 1982 with its amending formula. This is the constitution Quebec is sometimes said to have rejected. Its lawyer does not seem to have gotten that memo. Bernard’s argument exactly mirrored the position various federal governments have defended with regard to secession since 1997: that it should be possible, but can only be done according to the rules of constitutional amendment. I expect Bernard’s remarks to be quoted someday in some legal challenge over secession.

But what’s sauce for one goose is sauce for all ganders. It is fine for the Harper government to want Senate reform only if it can be done without great difficulty; but that’s a statement of druthers, not a case in law. The justices seem (only seem; we won’t know until they deliver an opinion, sometime in the new year) to prefer a thornier set of requirements. First ministers’ meetings, endless consultations, high-wire diplomacy among heads of government, an inherently unpredictable outcome. That reads like a catalogue of everything Harper likes least and hopes to avoid. That consideration does not seem to be weighing heavily in the Supremes’ deliberations.


 

The Supreme Court Senate reference: Hope and hard work

  1. Harper is going to run in 2015 on reforming the Senate. The entire election will be a referendum on keeping it, reforming it or abolishing it.

      • Really! The senate scandal and his part it in are, i would have thought, the very last thing he’d want to top the bill with. Particularly if this reference descends to the level of farce, which it is threatening to do.
        It would be awfully nervy[ and ballsy] to come back with a brand new plan b in hand after all that’s gone under the bridge.

        • He’ll probably tie it in with SCC reform – “those judges are holding up all real change in this country!!!”

          • lol

            He could try appointing Toews. I hear he isn’t too busy right now.

            How long can it be before he gets around to reforming the media at some point?

      • I’m unclear, though, how Mulcair squares his standing in Quebec and its chronic touchy constitutional feelings with abolishing the Senate. It seems pretty clear Abolishing is going to be harder than reforming, and reforming seems impossible. How does he convince Quebecers that no Senate is in their interest?

        • Maybe he’s hoping they wont notice it’s gone…or even care by then? It’s a problem that’s bound to come back and bite him at some point.

        • Believing something should happen even though it’s not clear how on earth it could be accomplished is not held against Quebec politicians; it’s basically a compulsory figure. Meanwhile there’s some (probably only some) sympathy for Senate abolition in Quebec, which was late to abolish its provincial upper chamber and still has some institutional memory of that act as a Good Thing.

          I do think at some point advocates of Senate abolition will have to come clean about the increasingly obvious difficulty of accomplishing that goal, but when does “some point” come? Harper has won three elections on Senate reform without ever having to deliver it. It’s not clear to me he couldn’t win a couple more on a similar policy of denying inaction. Chrétien and Martin each won an election with support for Kyoto as part of their rhetoric without ever having to do anything to implement it.

    • Except not actually a referendum in any practical sense.

      • No kidding. We get to abolish the Senate only if we are willing to allow a corrupt to the core government another majority?

        Keep the senate.

    • Doesn’t matter what he runs on he’s finished.

  2. I imagine the Harper government must be the ultimate problem client for an Ottawa lawyer – demands impossible result, only familiar enough with what’s going on to be a pester. Only positive side is that they probably pay their invoices on time.

    • Furthermore, I suspect Bernard’s words won’t even need to quoted in front of the Supreme Court. Everyone standing in the room would already know it to be true.

    • My wife is a lawyer for the Fed Government. The Harperites malign them, force them to write bs briefs on points written by short pants kids. Now they want to fire 1/3 of them and privatize the jobs, i.e. send the business to lobbyists like Arthur Hamilton.

      Don’t beat up on the Fed lawyers, they have no say.

  3. I had seen an earlier reference/link today on Twitter to some news article where Poliviere had issued another release (not the same as the link in Paul’s article -still looking for it) where he stated the Supreme Court reference would free the government from opposition obstruction to reforming the Senate.

    Above and beyond the legal arguments he and the government are trying to assert that seem legally/constitutionally dubious, I still don’t get how he and the government still thinks that assertion flies with either media or voters when they’ve got a majority in both Houses of Parliament

    • “I still don’t get how he and the government still thinks that assertion flies with either media or voters when they’ve got a majority in both Houses of Parliament”

      Well I think you need to consider the possibility that Poilievre is simply in over his head when it comes to anything other than reciting talking points, which is basically what he was doing.

      Others might use more unkind language to describe him.

      BTW this from Canadian Press:

      In a brief statement prior to today’s proceedings, Pierre Poilievre, minister of state for democratic reform, said change is inevitable.

      “The Senate must change or vanish,” Poilievre said. “The status quo is no longer acceptable.”

      He said the government is essentially asking how it can go forward on the issue.

      • And forgetting to mention they could have spared us the anguish of the Punch and Judy show in the senate by asking quite some time ago. Of course that they knew what the answer would have been back then might have something to do with the tardiness.

      • They could try something novel like talking to the Premiers about changing it.

        I know, Harper showing leadership is crazy talk.

    • Never underestimate the power of delusion when you appoint yourself outsider for life.

    • Poliviere is still playing Reform Party games to create a climate of opinion favourable to the idea of “Senate Reform.”

      A change to the practice of Senate appointment arises out of the abuses of privilege by Stephen Harper. The prime minister’s nominations have been historically uncontroversial even when some thought particular appointments were examples of patronage. Partisan appointments have been alleged before Harper but never with any credibility.

      The prime minister’s privilege of nomination derives from standing as a member of the Privy Council – meaning the Queen’s Privy Council, not the PCO – to advise the Head of State, the Queen through Her representative in Canada, the Governor General. But the PM is only one member of the QPC. A quorum of four is sufficient in most things, so the PM acting uncontroversially and respectfully has never before been controversial.

      This has all changed with the appearance of the Reform Party’s Stephen Harper as the Leader of the “new” Conservative Party and as Prime Minister. His objective is to “change how this country is governed” hence a shift of power to the provinces through provincially elected Senators accountable to the provinces. Practice is being abuse by “the Harper Government” in the interest of unmandated wholesale constitutional change, inverting the Canadian federal principle at the heart of Confederation and the constitution. This is why, it is hoped, the SCC will find against the Harper government.

      A change of practice that would not require changing Canada’s constitution, or amending it, and would work within our federal principle and parliamentary traditions would be to allow the full Queen’s Privy Council (or at least a quorum of the full QPC instead of the much smaller simple quorum) to advise the GG in Senate appointments instead of just the prime minister.

      What is interesting is that doing so will cross party lines and levels of government, even including invited premiers without resorting to the folly of political elections in the provinces to appoint non-political Senators.

      Our historic means, traditions, and principles are there to guide us; the folly has been in thoughtlessly calling for change to institutions we haven’t taken the time to understand.

      • You need to get yourself a newspaper column.. or a blog :)

      • O.M.G!!!

        Someone who actually understands the process issues involved here, understands what Harper’s true aims have always been about them, and points it out in a clear straightforward manner! If it wouldn’t set me up for bigamy I’d ask this person to marry me! That is how frustrating I have found the past several years on issues like the Senate and the complete ignorance of even the most basic realities involved in changing let alone abolishing it as espoused by the Harper CPC and to a lesser extent Mulcair (at least since Duffy-Wright gave him a lever to use politically speaking, before then he wasn’t talking so much about it). Whenever I see someone that shows they recognize the importance of understanding basic process issues like, oh, say how our systems of government ACTUALLY work as opposed to the massive amount of truthiness (at best) about it we have been seeing from our current government and as of late our current Official Opposition too I am brought literally to near tears. I say that because it seems so rare, and this should not be a rarity, it should be the norm, particularly among those of us that follow politics is closely enough to comment on them online but even more broadly to the average citizen.

        If we don’t understand and respect our governing structures then we risk having them stolen away from us by those that would prefer only their faction(s) have any say in policy and political decision making as opposed to being what we are supposed to be, a representative democracy. This is something I’ve been on the record about throughout my adult life, and especially since the rise of Harper to political leadership positions. His record shows his contempt for the basic structure of governing law that this country has evolved since Confederation, and this is only his latest example of that contempt. I still recall how in a minority Parliament his government submitted the claim to the Speaker of the House that a minority government had power superior to that of Parliament as a whole (the Afghan detainee documents issue for those who care), something which is a direct contradiction to the most basic reality of a Parliamentary governing system, as all power for government comes from Parliament first, it is why the governing head of country is merely the first Minister of the majority group of Parliament and only elected as an MP, and not as a party leader or as a candidate for PM.

        We know from his words and deeds both from before his rise to the PMO and since his arrival that Harper truly has no respect for the rule of law and the shape that the rule of law created in this nation, and he will do whatever he can to undermine if not explode it altogether wherever possible. This idiocy at the Supreme Court is just the latest example of that, and I feel so incredibly sorry for those government lawyers being forced to argue what they have to know in their private thoughts is an impossible possible under our laws, especially little niggling ones called the Constitution. It was always on this point that I argued so intensely that Harper needed to be stopped since before he was aided by traitor MacKay (he lives on in my memory as such, the so-called no-merger candidate, I wonder how different Canada would look if he had lost and Brison had won, I suspect one byproduct would have been the inability of Harper to ever make the PMO) in his hostile takeover of the PCPC to create the sham CPC. That it was on process issues and abuse of power precedents that Harper would be the real danger and threat to all, and was where the true “hidden agenda” existed with him. So here we go having my arguments proven out yet again, well at least I know there are still some others out there that understand (not just their importance but their actual nuts and bolts) process issues. That made my evening a bit brighter in a dark time. In days like these I’ll take what light I can find.

        Scotian

        • Yes, it’s lonely being so singularly brilliant as you are.

          • Gee, nice snark there, I would have gone with the word perceptive as opposed to brilliant since it seemed that Harper managed to snow most folks, in no small part because most folks also don’t understand the basics of how our governing processes work and therefore failed to see the threat he represented to them because of that ignorance. However, I am far from lonely, I have my wife, my family and my friends like most people. Incidentally, I don’t actually see myself as singularly brilliant, however I do think I am reasonably bright, reasonably well informed and educated. I am capable of thinking for myself, sourcing my information and making up my own mind about things instead of needing it predigested for me. I grew up with the strange belief that civic duty included understanding how our systems of governance work and placing defending them from those that would destroy them as a higher calling than any partisanship for a party, leader, or political philosophy. Which is why Harper was someone that needed being prevented from attaining the PMO all along, and the fact that he did so is going to have serious negative repercussions for this nation for decades to come.

            As to my rather strong reaction to reading a comment from someone that showed clear understanding of process issues, and even more clearly understood why they were important, that is born out of dealing with too many people that pay little to no attention to process issues preferring to only talking about leaders and ideologies instead. I am used to being one of the few that actually cares about process issues in political discussions online, and understanding of how these processes actually work as opposed to how people either wished they worked or worse can’t be bothered to find out how they work and make up what they think is best regardless of factual reality. Now, if all that reads to you that I think I am singularly brilliant, well then that says far more about you than it does me, and you’d have my pity for it were it not clear that you have only provided your contempt. Thanks for showing all your lovely soul there, such a pretty thing you showed us.

            Scotian

          • Yet another amazing talent — you can see into people’s souls. You’re extraordinarily gifted.

          • Only according to you, only according to you…*sigh*. You know, I don’t mind people disagreeing with me, but your kind of petty personal snark illustrates why political discourse these days is so mean spirited, petty and vapid, snark replaces insight, which I might add was what I meant by what you showed with your soul and how pretty it was, I was returning your snark with my own sarcasm, clearly that was too sophisticated for you given your response. After all you are the one who was going on about my lonely singular brilliance, something only you were claiming was the case with me, so you seem to have no trouble assuming such talents for yourself when it comes to being a snark wit.

            You want to attack what I said, fine, I have no problem with that. Go to town, I expect and invite that with public writing, it is part of the point after all. However, you want to simply make personal attacks based on nothing but your clear preference for personalities that has nothing to do with what was said and you get my contempt, and deservedly so. Your way of commenting is one of the main things wrong with political discourse in Canada these days, you chose to attack not what I said, not even how I said it, no you decided to attack the messenger directly. It is that sort of attack and smear the source approach that is one of the main reasons our political discourses in this nation have become so shallow, spiteful, and alienating instead of substantial, vibrant and inviting as political discourse once was. We used to be able to have vibrant political disagreements in this country strongly disagreeing with each other without once having to go to sniping at the persons making the arguments, let alone that being the only response/rebuttal.

            It is easier to attack the messenger instead of the message, this has been known for centuries/eons now, you are hardly inventing a new thing here. When one only attacks the messenger instead of the message it has been traditionally taken to mean the message is beyond credible attack by that person. This is what I meant with my sarcasm regarding what your “soul” showed, perhaps now that it is spelled out for you in simple words you recognize that all I was saying was that you are acting like a nasty spiteful cretin whose core appears to thrive on petty snark and personal attacks.. It was your soul you were exposing with what you said and how you said it, we all do so when we write, that is after all an inherent aspect of writing, if you did not know/understand that then you are even more pitiable than I thought.

            Scotian

          • Of course your posts are too sophisticated for me. After all, you operate on a higher plane of existence than I do, that’s obvious. I do apologize for the fact that you are forced to share this planet with lesser beings like me.

          • Can I get you some cheese to go with your whine there? Not to mention a dolly for that cross you appear to feel the need to carry as you go out of your way to play the victim while in actuality being the victimizer. The only person claiming I see myself as inherently better/superior to others here is you. You have at every turn in this thread gone on the personal attack instead of even trying to comment let alone critique anything I’ve actually written regarding the topic of this thread. All you have done is go out of your way to try and assassinate my character by putting words and attitudes into my mouth and character which I did not say, do not believe, and do not have. This has in turn done far more to illustrate your own character issues and basic nature than anything you have said about me does mine, and you have repeatedly decided to use severe hyperbole in the process of demeaning me.

            At this point the only person seeing you as a lesser being is yourself, while I see you as a rather nasty piece of work who is unwilling to deal with substance and would rather simply go for cheap personal character attacks instead I still see you as human. Humans are all in my view the same, neither greater nor lesser, now their character, their honour, their basic character/personality, now that can be measured in that sense, but we are all equally human beings first. You just happen to want to demonstrate some of the nastier aspects of the complex human reality, while I prefer to represent different aspects of it, but for all that we take very different paths I don’t see either as inherently greater or lesser human beings, just in terms of who is showing better character and integrity in terms of their beahviour, and in that sense I would have to agree with you, you have proven yourself to be lesser, but I had nothing to do with that, no that was all entirely do to your own decisions, words, and deeds here.

            I would finish with this observation, so far your actions have been essentially that of a bully mentality, not a very effective one granted, but still, a bully. You have done nothing to engage in anything resembling actual honest disagreement and discourse with me, you have only gone on the attack with personalities and smears. You have done this now three specific and consecutive times in this thread and not once in total have you actually touched on anything I actually wrote about regarding the actual topic of this thread. Worse, you chose to attack me where we had no prior history of interaction that I know of, and you chose the manner and tone that you did. That is classic bullying behaviour, and it deserves nothing but the contempt which I am now forced to offer you.

            Now I know that you don’t care, you have made that abundantly clear. I say this for the sake of others reading along so that they see what you have done, how you have done it, and how I have chosen to respond to it, and why after this I will be treating you as the bullying troll that you have by your words here have shown yourself to be. I will deal honestly with honest disagreement, but I will not waste much of my time with those unwilling and/or unable to rise above the schoolyard bully level that you have displayed in this thread toward me. I did nothing to you to deserve having my character attacked as you have done. I have done nothing to you prior to responding to your attempts to bully me into making some sort of heated remarks back at yours, possibly so you could then use them to justify your own personal behaviour. Well I don’t play that sort of game. I grew up a long time ago from those kind of elementary schoolyard games, and I prefer to have political disagreements with substance with those that take and treat their opinions, views, and principles seriously, which clearly by your conduct you do not.

            So feel free to continue if you chose, I will be washing my hands of you from this point on. You had your three strikes, once may be accident. twice may be coincidence, three times though is enemy action as the cliche goes, and enemy you have proven you wish to be, and not even one of substance, just a gadfly buzzing around trying to be annoying as a bully. All you have done is the verbal equivalent of walking up to someone talking to some else in a public area and start shoving them and going “what you going to do about it”, well this is what I chose to do with it, I chose to not be intimidated, distracted, nor provoked by it.

            I intend to act like the rational reasonable adult that I am, and that I would prefer to interact with, which I might add has nothing to do with what political beliefs one holds, this is something far more basic than that, so trying to paint this as some sort of political slap would only further demonstrate just how far you are away from being able to enter into a adult conversation or disagreement. I am not reacting this way because of any political positions you hold (indeed you have not provided me with any basis in any response to have any idea what they might be), I am reacting this way because you have shown the behaviour of a elementary schoolyard bully out to provoke conflict and/or intimidate me. I may be a long winded writer of comments and process geek, but at least I try to show good manners, civility, and respect to others regardless of whether I agree/disagree with them on issues and such. I don’t use derogatory words to demean those I oppose (ie I don’t call Harper Harpoon or worse such, while I am in utter opposition to him politically I still respect the Office he holds and the need for civil disagreement, so I refrain from such behaviour, I can hardly call for improved political dialogue without trying to practice what I preach), and I don’t root my criticisms of those I disagree with politically in personal attacks either. I prefer to try for that hard to reach goal of serious meaningful political discourse, be it in agreement or disagreement, because that is what is healthy, not this nonsense of personal attacks and cheap insults.

            Good day.

            Scotian

          • Just a constructive criticism: I think you should consider making your posts longer. It seems to me that you were building up to the point you were trying to make, but that you really didn’t quite get it across, because you were being so sparing with your words. If you had added, say, a few more paragraphs, I think you would have pulled it off and really hammered your point home.

    • Notice how the Conservatives are being vewy vewy quiet about the third e in their Triple E Senate fantasy? Elected, Effective and EQUAL? Try that one on in the Atlantic Provinces and find out where they keep the tar and feathers.

  4. “Are you seriously suggesting,” Justice Thomas Cromwell interrupted
    federal lawyer Robert Frater at one point, “that the implementation of
    consultative elections for a Section 96 judge would not have the effect
    of amending the constitution?”

    lol I don’t know much about the law, but i suspect no lawyer, federal or otherwise, likes to be addressed from the bench with the emphatic question…”Are you seriously suggesting…?!?!” Did the judge put on the black cap too by any chance?
    Frater wasn’t the poor soul who, during insite, got to suggest that the whole of federal drug enforcement policy was in danger of going up in smoke if addicts went into a room and received the help they need, only to have one of the supremes assure him it could resume once again, the moment they stepped outside the room… was he? I imagine Darth has already choked off that poor sod.
    Great piece of writing. Abounding in humour and irony all the way through.

      • That’s too funny, just a guess on my part. Perhaps there was something about the nature of the petition that was familiar? Probably not his fault at all.
        Looks like Darth has opted to stick with this one for a while then? I wonder if there’s a shortage of good candidates right now for some reason?

        • Not many lawyers have SCC experience and that is the most likely reason he was assigned both files. I would not suggest anything is Robert Frater’s fault. I’m sure DOJ lawyers are putting forth the best arguments possible: it’s just a losing case.

          • Fair enough. Still, it must be embarrassing for him on some level. Doesn’t he get to at least point out the major flaws in the argument to his side? Or is he just pointed in a direction and told to march?

          • They are not “arguments” they are harper talking points.

            Thinking they would work in this forum is as silly as thinking they would work on KXL politicians.

  5. “Canadians have waited 146 years for the Senate to change,” Poilievre
    continued. “This reference to our nation’s top jurists will light the
    way.”

    I imagine he stood up and flicked his BIC at that point.

  6. The only thing that might pique my interest in all this is
    if the Fed case were presented by Pierre Le Pew himself in his
    usual humble and persuasive manner.

  7. My partner is a lawyer for the Fed Government. The Harperites malign
    them, force them to write bs briefs on talking points written by short pants
    kids. There is no actual policy coming from PMO, just talking points. People are demoralized.

    Now they want to fire 1/3 of them and privatize the jobs, i.e.
    send the business to lobbyists like Arthur Hamilton.

    Don’t beat up on the Fed lawyers, they have no say.

    • The Reform Party is the Reform Party is the Reform Party. Ten years out after removing the Progressive Conservative Party of Canada from the ballot through deceit they are still the Reform Party.

    • Why wouldn’t they fire 1/3 of them if they don’t think it’s their job to argue on behalf of their employer? Would you hire a lawyer who refused to plead your case? Of course not.

      • I know someone who “fired” his doctor after said doctor advised him to stop smoking, eat less and eat better, lose weight and exercise regularly. Unfortunately that someone is not doing very well these days.

        You’re just applying the same principle to lawyers, who we might reasonably expect to have some level of expertise and understanding of, you know, the Law and who may well have advised their client on the likelihood that their preferred argument or strategy would not work at all in the courts.

        That is not to say that the government’s ‘long game’ is basically to erect a straw man and have the courts demolish it, and then be in a position to go back to the electorate and capitalize on their collective lack of knowledge to fight an election against “the elites”.

        They don’t really care about Senate Reform, they are only interested in retaining power. The poor rubes like Bert Brown who thought they really were interested, I have no sympathy for: There are none so blind as those who will refuse to see.

      • Part of your job as a lawyer is to advise your client on the merits of the client’s case. Per the Code of Professional Conduct for BC, “A lawyer should obtain sufficient knowledge of the relevant facts and give adequate consideration to the applicable law before advising a client, and give an open and undisguised opinion of the merits and probable results of the client’s cause. The lawyer should be wary of bold and confident assurances to the client, especially where the lawyer’s employment may depend on such assurances.”

        The privatization of federal government legal work has nothing to do with the competence or loyalty of DOJ lawyers: it is based on ideology.

  8. Retreating into a species of 19th century demagoguery about the necessity or merit of elected office has misled us in most arguments regarding the Canadian Senate during the last century, the 20th century. Rhetoric of that kind and the mistaken view that the Upper Chamber should be a House of the Provinces are the two historic failures of discussion of Senate reform, as noted by the eminent scholar F.A. Kunz in The Modern Senate of Canada writing as early as the 1960s with an understanding of the spirit of the age.

    This is not difficult to understand and reason enough not to allow a mere temporary government of the day to rewrite the fundamental laws of the land, particularly the Canadian constitution, in its own image whether or not it is understood as part of enabling and enforcing an undemocratic “Big Shift” away from the fairness in the Canadian federal principle to unilateral change by a government which is using selective disrespect for the majority of Canadians and Canadian provinces in order to empower the single province which is its core vote and its base.

    • So this is all an evil plot to have us ruled over in perpetuity by Alberta? Fascinating. I hope Wells hasn’t missed that — he’s usually a pretty bright guy.

  9. I still don’t understand why this reference is not mooted by the Quebec Court of Appeal. In the Reference re Same Sex Marriage, the Court refused to answer the fourth question as it was a question that had been decided by a provincial Court of Appeal and thus theoretically subject to direct appeal tp (and thus direct jurisdiction of) the Supreme Court, rather than indirectly in a non-binding way via reference jurisdiction. Isn’t this the exact same thing?

    • By which I mean that the Court shouldn’t be in the business of advisory opinions that potentially conflict with a lower-court ruling that wasn’t appealed.

    • I’d be loathe to state that Re: Same sex marriage stands for the idea a reference isn’t to be used when lower courts have ruled on the matter, and if you need to draw a distinction between Re: SSM, the Quebec case here was also a reference decision.

      • Read the opinion on question 4 and tell me if you still think the same. The supreme asked Peter Hogg directly “has the government ever before proceeded via reference when it could have pursued a direct appeal on the same question?” He couldn’t answer. The answer was no. And the court doesn’t like that idea. Again, read the Ssm opinion on question 4.

        • I’m well aware of the decision. The refusal to answer the question was based on a “unique set of circumstances” of which the situation you mention was only one. Not only are these circumstances not mirrored in the current case, to assume it’s a hard and fast rule the way you seem to imply doesn’t jibe with the wide discretion available to the SCC.

  10. The reference to the Supreme Court was worth it just so Wells could write this:

    “This is the constitution Quebec is sometimes said to have rejected. Its lawyer does not seem to have gotten that memo.”

  11. Paul, interesting article – I’d just like to comment on the issue of the Quebec lawyer saying that the process should respect the Constitution. I appreciate that Quebec opted not to sign onto the changes made by Trudeau and the other provinces. But, in reality, I doubt the lawyer’s comments contradict Quebec’s past or future positions.
    The discussion before the Supreme Court has everything to do with the 1867 British North America Act and the constitutional framework/ separation of powers set out in that document. Quebec has always respected that framework (in fact it has vigorously defended it since it gives provinces an impressive array of powers).
    The 1867 constitution may have been incorporated into the overall Canada Act (along with the new charter and other miscellany), but I don’t think Quebec’s objections to the changes of the 1980s has any bearing on their position vis-à-vis the legality of the 1867 constitutional framework which remains largely unaffected.

    • The issue is the amending formula that was introduced in 1982, not the 1867 BNA Act:

      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.

  12. I don’t believe that the federal court has durosdiction over the constitution, nor do the feds. The constitution is in totat control of the people of Canada. No political apparatus has a say on this issue.The same applies to political apointees.
    Only regular working citizens have that responcibility. Having said that this issue places
    a heavy responcibility on the voters. This issue requires years of studies by the voters
    to come up with a solution which needs to serve the nation for eons of time.

  13. To reform the Senate we need a PM that can negotiate with all the provinces in good faith.

    harper has refused to ever meet with premiers because harper does not believe in negotiation, he believes only in unilateral action based on RWNJ ideology.

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