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The prime minister’s Senate reform plan…


 

…is seriously not popular with some of the country’s finest constitutionalists. But surely people who’ve read Pierre Trudeau’s constitution and — shudder — teach it for a living are part of the Vast Liberal Plot, no? Anyway, Kady has details.

SPOTTED! A LIVE GOVERNMENT STAFFER UPDATE: Funny how much more quickly one hears from ministers’ offices when one doesn‘t ask a question. From Peter Van Loan’s office:

I see that you’ve started to pay attention to the proceedings at the legislative committee on Bill C-20 (Senate consultations).

It’s unfortunate that you decided to start paying attention today. At the last meeting, Peter Hogg (arguably Canada’s finest constitutional expert), and Fabien Gélinas (Associate Professor, Faculty of Law, McGill University) both appeared and testified to the constitutionality of C-20 (http://cmte.parl.gc.ca/Content/HOC/committee/392/cc20/evidence/ev3434086/cc20ev05-e.htm#Int-2424924).

I know you are busy so I’ve cut and pasted some relevant testimony from two of Canada’s finest constitutional experts.

From Gélinas:

“As a constitutional lawyer, I naturally asked myself if the bill is valid constitutionally. In legal terms, the answer seems quite simple. The bill does not seem to change any provision of the Constitution within the meaning of section 52 of the Constitution Act of 1982. The constitutional amending procedure in section 38 of the act and those following does not come into play. It simply does not apply.”

From Hogg:

“I say that Bill C-20 would be a valid act of Parliament, and it escapes the strictures of paragraph 42(1)(b), the fact that it requires an amendment to change the method of selecting senators. It avoids that because it does not literally amend section 24 of the Constitution Act, 1867.

It could be argued—and Professor Gélinas did not argue this—that Bill C-20 is, in pith and substance, really an amendment to the method of selecting senators and is therefore unconstitutional under paragraph 42(1)(b). My view is that the Supreme Court of Canada would not accept that argument, and I say that because the appointing power of section 24, which only speaks to the Governor General, does not now impose any restrictions on the consultations or considerations that the Prime Minister might take into account before recommending an appointment to the Governor General.”

As for Errol Mendes, and his appearance today, given that the Liberal Party, in reality, opposes Senate reform (and Bill C-20), I think this is a relevant piece of information:


Name of contributor

Political party / return type / end period

Date received

Class of contributor / Part # of the return

Contribution transferred to (leadership contestant)

Monetary ($)

Non-monetary ($)

Errol P. Mendes

Liberal Party of Canada / Quarterly / Dec. 2007

Oct. 23, 2007

Individuals / Part 2a

1,000.00

0.00

He also donated at other times, if you think this may just be a one time event that happened 6 months ago.

Michael White

Communications Assistant/ Adjoint aux communications

Leader of the Government in the House of Commons and Minister for Democratic Reform / leader du gouvernement à la Chambre des communes et ministre de la réforme démocratique

Great work. Now I’ll bite: Is it germane that Hogg co-chaired, with Vic Toews, the panel that vetted Marshall Rothstein’s Supreme Court appointment? Even though Canada’s New Government paid Hogg $14,000 for six weeks’ work in 2006? (Let me answer my own question: Nope. I kind of tend to think opinions should be taken at their value as legal arguments. So Michael White’s mud isn’t worth any more than mine, even though I’ve got a guy who received money instead of donating it. And let me tip my hand still further: I’m a fan of John Whyte, and so, I note in their judgment in the Secession Reference, was the Lamer court, which took Whyte’s testimony as deputy minister of justice for Saskatchewan very seriously.)


 

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