09 January 2010

Jeff, the SCC and senate reform

Canada’s Ersatz George Will should learn to do that or at least take his own advice.
Jeff Simpson implores – presumably the prime minister and premiers – as follows:
Go right ahead, gentlemen. Climb into the sandbox of Senate reform and start playing. But before doing so, pause and read at least a summary of a Supreme Court of Canada ruling of 1979 that will complicate every game you might wish to play.
The ruling -  issued in 1980 – is readily available online and makes for easy reading for anyone with a rudimentary knowledge of only the English language.  It does not, as Simpson claims, mean that the federal parliament can “unilaterally do almost nothing to the Senate.”

The ruling came in response to a specific set of questions posed to the court.

But more importantly, the reference came at a time when any amendment to the constitution had to be done as an act of the British parliament.  If you read the SCC decision, you can see the extent to which that circumstance drove the reasoning, particularly the impact of a 1949 amendment to the section of the constitution which  defined how constitutional amendments were to be made.

The Supreme Court answered a specific question – in paraphrase: can the federal parliament unilaterally amend the constitution as it was in 1979 to eliminate the senate – with a resounding “No”.

The reasoning is simple:  the senate was created to represent the “sectional” interests of the country and to do so equally and nothing up to 1979 gave the federal parliament the power to alter so fundamental a notion.

Here’s what the learned justices said in the summary at the front of the decision and the same words are repeated throughout its lengthy explanation:
The apparent intention of the 1949 amendment to the Act which enacted s. 91(1) was to obviate the necessity for the enactment of a statute of the British Parliament to effect amendments to the Act which theretofore had been obtained through a joint resolution of both Houses of Parliament and without provincial consent. Legislation enacted under this subsection since 1949 has dealt with matters which, according to the practice existing before 1949, would have been referred to the British Parliament by way of a joint resolution of both Houses of Parliament, and without the consent of the provinces. It did not in any substantial way affect federal-provincial relationships. The legislation contemplated in the first question is of an entirely different character. While it does not directly affect the federal-provincial relationships in the sense of changing federal and provincial legislative powers, it does envisage the elimination of one of the two Houses of Parliament, and so would alter the structure of the federal Parliament to which the federal power to legislate is entrusted under s. 91 of the Act.
The Senate has a vital role as an institution forming part of the federal system: one of its primary purposes was to afford protection to the various sectional interests in Canada in relation to the enactment of federal legislation. The power to enact federal legislation was given to the Queen by and with the advice and consent of the Senate and the House of Commons. Thus, the body which had been created as a means of protecting sectional and provincial interests was made a participant in this legislative process.
Nowhere in that can one find anything that  - even vaguely - gives provincial premiers a function veto over all senate reform as Jeff Simpson contends.

Nor can it be found in the decision on some bits of the second question to which the court also said “No”.

The second question contained a daisy chain of changes, including giving new powers to the provincial governments. Not surprisingly the judges thought it a bad idea in a federal country to let Ottawa unilaterally change what a provincial legislature can and cannot do. The others were deemed to lack sufficient information to let the judges made a choice.

Jeff’s basically out to lunch if he thinks the 1980 decision gives the senate as it is currently constituted some sort of provincial protection.

They get that out of the 1982 repatriation and the subsequent amending formula:
42. (1) An amendment to the Constitution of Canada in relation to the following matters may be made only in accordance with subsection 38(1):

(b) the powers of the Senate and the method of selecting Senators;
(c) the number of members by which a province is entitled to be represented in the Senate and the residence qualifications of Senators;

Unfortunately, Canadians are stuck in a situation in which the provincial satraps must find agreement before anything can be done with the senate.   Don’t forget, this is the same gang that couldn’t even agree among themselves on how to keep the taps of federal Equalization cash flowing to them all.

The only difference is that in this case, there are more of them in favour of senate abolition than any other choice. The only result of abolition – supported as well by the federal New Democratic party – would be to cement the control Ontario members of parliament have on the federal legislature.  The sectional balancing effect that the senate is supposed to have from the original constitution would be gone.

That would adversely provinces like those in Atlantic Canada or in the west. The scary part of the abolition movement is that where it was once confined to those with a naked self-interest in such a move, the idea has now caught on in Nova Scotia and elsewhere.  Not only is Darrell Dexter hoodwinked into believing that the Lower Churchill exists but he has also been fooled into thinking no senate is better than senate reform when it comes to protecting his provinces interests in Canada, the federal country.

The only part of Jeff’s column where he seems to get it right is at the end and that’s really the easiest of all bits when it comes to assessing federal-provincial relations. Odds are that any move to reform the senate in a meaningful way will simply open the doors to more constitutional demands and the sort of indecision we have seen repeatedly on issues involving the 11 first ministers.

Aside from the normal, eternal divisions among the provincial premiers, Canada is also beset at this sad time in its history with three major federal party leaders neither of whom holds the vision necessary to counteract the premiers politically.

For the Prime Minister, senate reform is another of his tiny tactical manoeuvres to stay in power.  For Jack Layton, he’s already locked firmly in favour of Ontario with the NDP cry for abolition. Heck his party constitution doesn’t even believe in fairly representing the “sectional interests” of the country.

And Michael Ignatieff?  So far he has shown himself to have as sensitive and informed a view of Canada, the country, as he had of the ethics or efficacy of binding some poor sod to a board and then draping his face in wet towels until he suffocates. National support for the Liberals speaks rather clearly to Ig-man’s lack of appeal.

Senate reform could occur if there was any leadership in the country worthy of the description. Leadership could deal with the situation imposed by the 1982 constitution.The country needs leadership. 

Sadly, the people of Canada cannot find leadership among the 10 premiers, or the federal party leaders.

And that, Jeff Simpson ought to know, is the real political problem with senate reform.



Skinny Dipper said...

Yes, Harper may get his Senate proposal passed in the House of Commons and a Conservative majority Senate. He may even be able to recommend the appointment of people to the Senate based on provincial Senate elections. He cannot limit the terms of Senators to eight years without a constitutional amendment.

One problem I do have with Harper's Senate reform proposal is that it does nothing to change the distribution of seats. Why does a bigger British Columbia have fewer Senate seats than a smaller New Brunswick? Also, if Ontario had Senate elections once every four years, there could be around six positions available. That means for up to four (or five) years, there would be six Ontario Senate seat vacancies. Also, when elected, Harper or some future prime minister is not obligated to recommend the appointment of the supposed elected senatorial nominees. Imagine four Liberals and two Conservatives being elected. Would Harper want to recommend the appointment of the four Liberals? I doubt it. Also, I can't see any future senator resigning after eight years.

Senate reform is great. However, Harper's proposal is not.

Ed Hollett said...

Well Harper's whole thing is merely a tactical ploy, not a serious proposal for senate reform. That's why he has everything in it including abolition.

But nothing can happen without the agreement of the Premiers. Unless they all come to an agreement on abolition (the seven/50 solution) which would also likely get the approval of the NDP and maybe even the Liberals, it's unlikely anything at all will happen except for the beating of a few gums.

Skinny Dipper said...

A couple more points:

I do try to understand the NDP position of abolishing the Senate. Why have a second house impeding the legislation in the first house. However, Canada is a very regional country that needs to take regional interests into consideration. How the regional Senate pie can be divvied up is debatable. Triple-E. Regional-E, other formulas?

Also, I do care how intelligent the existing appointed senators are. Since, I did not vote for them, they do not represent me. They don't represent my region or province. They only represent the crown. If I were a devout Christian and Jesus was appointed by the GG to sit as an Ontario senator, I would not consider Jesus as my representative for I would not have had the opportunity to vote for Him. Then again, I think Jesus has more important things to do than become a Canadian senator.

The Mound of Sound said...

Harper is in no position to drive through Senate reform. He is, after all, a minority prime minister and, while that fact may be missed by the opposition in the Commons, the premiers are well versed on what that means to them.

The Maritimes won't be interested in discussing any deal that would re-align (shrink)their Senate representation to something vaguely approaching demographic reality.

The West has a solid claim for greater Senate clout and neither Ontario nor Quebec have been happy with their quota of seats in the Senate either.

It's a can of worms Harper shouldn't open up UNLESS his agenda is to get the country divided along hostile and suspicious, regional lines. Maybe inter-provincial chaos somehow serves Harper's interests.

Ed Hollett said...

"The Maritimes won't be interested in discussing any deal that would re-align (shrink)their Senate representation to something vaguely approaching demographic reality.'

This is a rather curious comment for several reasons:

1. It omits newfoundland and labrador entirely. Hint: The maritimes refers only to NS, NB amnd PEI.

2. It ignores the fact that Darrell Dexter is already in favour of abolishing the senate. That pretty much qualifies as being highly interested in shrinking NS senate representnation.

3. It also seems to assume that any proposal for senate representation ought to have the senate mirror the Commons, i.e. elected or apportioned on the basis of population. At the very worst the current discussion is on embedding the existing representation model. At the best it is about giving equal representation based on geogrpahy (provinces.

4. But that is most emphatically NOT) not the provincial governments which is another of the odd assumptions that seems to underpin this paragraph of the comment.

If we look at the other bits - like say that first paragraph - I have to admit I am scratching my head as to what the heck it means. No senate reform is legally possible without using the 1982 amending formula. That has nothign to do with whether or not Harper is running a majority government or an Italian-esque coalition of the damned.

Based on all that, Mound of Sound could be Jeff Simpson's online persona.

Wm. Murphy said...

Like the proverbial cold sore on prom night, Senate reform discusions have again broken through the scab.

In recent memory of Mulroney padding the Chamber for HST, to Harper's sickening displays of selecting incompetent partisians....the discussion is now reduced to the likes of Simpson pontificating.

Ed, your comment...

" Aside from the normal, eternal divisions among the provincial premiers, Canada is also beset at this sad time in its history with three major federal party leaders neither of whom holds the vision necessary to counteract the premiers politically."...is dead on.

The very notion of triple E Senate reform and the notion that this Chamber can once again become a place of sober second thought, is light years away.

Ironically however, I think the current collection of Canadian Premier's, by in large, have the vision you mentioned. Specifically, there doesn't seem to be any Hatfield's or Vander Zam's floating around the First Minister table.

When this is the case, Canadian's have a bunch of Federal Leader's that couldn't carry Trudeau's constitutional brief case.

I would like to see the Federal Leader's outline exactly their vision of Senate reform. Maybe this would galvinize some of the electorate.

Wm. Murphy

líam said...

"That would adversely provinces like those in Atlantic Canada or in the west."

I'm guessing you mean "...as compared to a triple-E (or similar type of) reformed senate", since clearly, the Senate has almost never fulfilled the supposed role of protecting the West or Atlantic Canada.

Ed Hollett said...

The senate in its current form does not work as it was intended to work.

That is not a case for abolition; that is a case for reform.

A senate with no power to do anything, comprising members appointed by a prime minister who prorogues parliament to suit his own partisan tactical purposes is an institution which clearly cannot do what it was supposed to do or what it ought to do in a properly functioning federal parliament.

Wm. Murphy said...

Did you happen to catch Sen., Fabian's brillant comments on the need and rational to paroguge Parliament? It is absolutely amazing how this mental giant could be our "represenative".

I would love for someone to join in the discussion and justify this idiots comment. Go on... I dare you!!

Wm. Murphy