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.