The Supreme Court Senate reference: It's going well -

The Supreme Court Senate reference: It’s going well

Paul Wells on the PM’s setbacks


Guys, I’m pretty sure if we try hard we can get the PM to say something cranky about Liberal judges today in Question Period. I suspect he’s in a mood. His Supreme Court reference on changes to the composition of the Senate is having a lousy ride through the judicial process.

Setback 1: Two weeks ago the Supremes rejected a(n insane) request from the Justice Department that the top court not bother to receive legal arguments in the reference, a request the feds made on the ridiculous grounds that everything that could be said on this specific set of reference questions has already been said in more than a century of general debate on Senate-related issues.

Setback 2: Considerably more embarrassing for the government. There’s been a lot of speculation that the feds slapped together this Supreme Court reference in a bid to shut down the Quebec government’s own reference to Quebec Court of Appeal, for which hearings were scheduled this autumn. The Quebec government — both the current PQ government and its Liberal predecessor — is strongly opposed to any of the, ahem, many Senate reform projects the Harper government has considered, fiddled with, half-attempted, etc. etc. Harper figured there was no way the Quebec Court of Appeal reference could end well for him. The feds fired off another doomed request, asking the Quebec Court of Appeal to voluntarily suspend its own hearings, pending the Supremes’ opinion. Yesterday the Quebec Court of Appeal said no dice.

So the Quebec government’s challenge to the existing federal Senate-reform bill will be heard before the Supreme Court holds its own hearings. And those hearings will be real hearings, with several contradictory arguments from an array of intervenors. I’ve been wondering whether the Harper government was hoping it wouldn’t have to make its own explicit arguments. It could, indeed, decline to argue the case it sent to the top court. But I suspect it would then suffer a third setback, because the Supremes could appoint an amicus curiae, an independent lawyer who would act as “friend of the Court” to argue the point of view the feds had left orphan. (That’s what the Supreme Court did when the Quebec government boycotted the 1998 Secession Reference; lawyer André Joli-Coeur’s account of that episode is so cute I just want to hug him.)

We’ve been covering Harper’s unlucky relationship with Canada’s courts for a while here at Maclean’s. Here’s a good primer. He may have hoped he’d have a run of good luck with the Senate Reference. So far he’s crapping out.



The Supreme Court Senate reference: It’s going well

  1. “… unlucky relationship with Canada’s courts?”

    Is there a usage of the word “unlucky” that means hubris and obstinacy?

    • I don’t know that that’s right, but I will certainly agree that “unlucky” is not the right word.. as that word implies something unexpected. Given Harper’s history when it comes to speaking about the courts, as well as the CPC’s ability to draft coherent legislation, it can hardly be said that the relationship is unlucky.

      Wells particularly should be aware of this.

      • Guys, please. Understatement is so rare that we should welcome it when we see it rather than scare it off by demanding that it act more boldly.

        • I thought my sarcasm was understated.No?

          • touché

  2. There are five SCC judges who should be put out to pasture.

    • This comment fascinates me. Given that most recent SCOC rulings are either unanimous or close to unanimous, it’s hard for me to have any idea which five justices you’re talking about. The five appointed by Stephen Harper? The four not appointed by Harper, plus one that he appointed? Five justices with no particular PM similarity at all?

      I honestly have no idea which 5 justices you’d like to bounce.

      • It’s a safe bet none of them are Harpers. Which doesn’t make sense either since NOT putting bad picks on the court has been one of his few policy successes imo.

        • It’s not a safe bet at all, since there are only four non-Harper-appointees on the SCC right now.

  3. “A government lawyer had argued in a letter to the court that all the
    evidence the court needed was already on the public record, and said
    allowing more input could delay a final ruling on Senate reform that is
    badly needed.”

    I’ll get my partisan dig in at the off: i think we can safely say by now that the Harper govt’s first instinct is almost invariably to shut down avenues of debate or possible discourse that might take off in un expected directions that they can neither manage, control or predict. IOWs undemocratic at worst – utterly, myopically, partisan and self interested at best. If they can’t grab the tiller of the ship of state [ be it committee, or courts] they’re going to do their utmost to make sure they and only they get to shout directions from the back seat. It is an instinct that is profoundly distrustful of Canadians and our institutions.

    Are you so sure Harper is as grumpy about this as you feel PW? Sure he got knocked back. But he has persuaded the court to set timelines which may make it tough for all the intervenors to fully make their case. I just wonder if isn’t the old let them slap down your silly strawman argument but gamble they then concede the point you really thought most likely to get through – limit everyone’s preparation time – good psychology no! I would never dare that given how smart these supremes are…but they are only human. We all like to give a little, are tempted to hand out some sweeties; particularly after saying a firm no! to the kiddies pleas to only allow older and existing toys into the sandbox, on the basis that every decent toy that was ever made has already been made.

    Don’t know if i’m underestimating the street smarts of the SCoC or overestimating Harpers? Of course i might be just ignoring the mounting evidence of this govt’s completely inept and amateurish attitude toward the highest courts of this land.

    • have to agree : through the years I have noticed that harper does soemthing then all the critics, experts and academics automaticallly pan it – label it as absurd, not possible and or without relevance and don’t forget wrongheaded or some such! Then invariably awhile later the result is a policy harper wants is implemented and rarely do you hear about it again – were one to go back and review them all one would clearly see that harper is truly a master of the old carrot and stick and while you are looking at him as his finger starts coming at your eye you stop listening to him as he clearly informs you that he is commenicng to pull the rug out! The man is a master at his game and if you snooze you lose !!!!!! to underestimate him is to end up like Dion or Iggy !!!!

      • Amazing how he can get his supporters to say crow about how bad we get screwed. I for instance loooooooove not having the billions we were owed on softwood lumber and less reliable but more expensive census data. Canadians might not be hearing about this stuff any more, but let’s do ourselves a favour and not forget.

        party above country for ever and always CPC supporters.

  4. My guess would be that Harper has calculated that there is more to be gained by being seen to be obstructed from reforming the Senate rather than actually reforming the Senate. Thwarted by the NDP in Parliament, held up by the dam Liberal judges, the Conservatives will appeal to all right thinking Canadians to empty their wallets and help with this sacred cause.

    I suspect this is referred to in the war-room as the “hyper-extended gun registry gambit”.

    • It’s a big gamble to assume “Canadians are so dumb they don’t realize you need a constitutional amendment for any worthwhile change and unworthwhile change very well might not be worth doing”. Then again, CPC has had astounding luck in the past.

    • Thwarted by the NDP in Parliament, held up by the dam Liberal judges, the Conservatives will appeal to all right thinking Canadians to empty their wallets and help with this sacred cause…

      … and pray that no one remembers the fact that the NDP isn’t actually capable of thwarting a government that holds a majority of seats in the House of Commons (and controls a majority in the Senate), nor the fact that 5 of the 9 justices of the Supreme Court of Canada were appointed by Stephen Harper.

      • Good luck on the 5 of 9 thing.

  5. All that Harper does is geared to keeping the cards and letters coming in from the targeted voting block…all…and the delicious irony is the process is known as a Flanaganism.

    Birds of a feather…………

  6. PM Harper has been underestimated every single step of the way–this is just one more step.

  7. No doubt yet another PMO trash can is about to be ‘retired’ by the right foot of a “very disappointed” Stephen Harper.

    This is an example of what I describe as ‘harperesquely disappointed’.