Mind the constitutional gap - Macleans.ca

Mind the constitutional gap

If Harper wants to kill the Senate, he should first look back at the career of his one-time idol, Pierre Trudeau

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Blair Gable / Reuters

They have always said that the young Stephen Harper admired Pierre Trudeau. A lot. Harper’s original boss at Imperial Oil once told the Edmonton Journal’s David Staples that Harper, having fled the University of Toronto for the frozen prairie, “thought Trudeau was God.” He is even said to have made himself a nuisance at work by insisting on it. This is in a late ’70s Alberta workplace, mind you. It sounds as though he was a bit fortunate not to get dunked in hot bitumen and feathers.

Alberta turned Harper against the Liberal pantheon of his youth, and his rebellion, in time, triumphed. Yet one notices that the new boss has a suspiciously familiar attitude toward the Constitution. Trudeau tried to patriate the Constitution over the heads of the provincial premiers, dismissing the requirements of federalism for the longest possible time as an irritating nullity. Now Harper wants to either kill or emasculate the Senate: his lawyers are arguing that the former could be done with the consent of only seven provinces, and the latter with none at all.

Trudeau eventually had to accept the fact of Canada’s federal nature, and it is a pretty good bet that Harper will too. The Constitution does not explicitly say which amending formula applies if somebody should decide to abolish the Senate. The “general” formula is the familiar “7/50” (seven provinces making up half the population), but changes to the Constitution’s amending scheme itself, like other changes to the deep essence of the Constitution, require unanimous consent from the provinces.

And the Senate, of course, is involved in the (so far quite hypothetical) process of making amendments. Indeed, it is mentioned no fewer than 12 times in Part V of the Constitution Act of 1982—that’s the bit about how to make amendments. We know it’s 12 because lawyers for the province of Manitoba did the counting: the figure is in their factum in the Senate reference case now before the Supreme Court. Even though Manitoba’s NDP government favours Senate abolition, its representatives are arguing, with admirable disinterestedness, that the “unanimity” formula applies. If you get rid of the Senate, you are tampering with Part V and you need 10 provinces.

The federal government’s bright idea is that Part V does not technically have to be touched if the Senate is abolished. The references to the Senate’s role in the amending process can be left there in the text: the courts can just regard them as “spent” if there is no longer a Senate in existence. In practice, this would mean a real change in the amending formula for the Constitution, and Harper’s lawyers admit this in their factum. A fair summary of their argument would be: “But it’s no big deal, it’s just the stupid old Senate.” They are hoping to persuade the court that 7/50 applies as long as the language in Part V isn’t actually altered.

The Supreme Court’s resistance to this sort of flummery is pretty much its one reliable historical constant. But you have to admit this about the Conservative government’s position: the creators of the amending formula had the chance to specify where Senate abolition fit in, and they blew it. It is a grey area that was apparent almost immediately after patriation, for it is not as though Senate abolition was thought up last week. And, of course, this goes back to Trudeau’s—the original Trudeau’s—haste to finish his career with a flourish.

Our Constitution can accurately be described as the envy of the world, but then again the world doesn’t really get to see us gawking at each other in open-mouthed confusion over embarrassing gaps like this one. The key features of the 1982 Constitution were hammered out in smoke-filled hotel rooms by men who intentionally refused to record their discussions and who have never ceased arguing about exactly how they went. The various Canadian governments built the frame in haste, were late to begin talking to each other, never involved the public, and left the structure consciously half-finished. It’s a wonder it hasn’t yet come down on our heads.

On the web: For more Colby Cosh, visit his blog at macleans.ca/colbycosh