Wednesday, August 07, 2013

A More Detailed Analysis Of The Harper Government Factum

I spent some time today reviewing in detail the Harper Government's factum arguments that they are putting to the Supreme Court of Canada with respect to the subject of Senate Reform.

A large chunk of the first half of the document is devoted to how the constitution was amended prior to the current amending formula coming into force.  Since those formulae exist in a context where the Canadian Constitution lacked any explicit amending procedure, I am going to ignore them as fundamentally irrelevant noise in the government's arguments.

Question 1:  

1. In relation to each ofthe following proposed limits to the tenure ofSenators, is it within the legislative authority of the Parliament of Canada, acting pursuant to section 44 ofthe Constitution Act, 1982, to make amendments to section 29 ofthe Constitution Act, 1867 providing for
(a) a fixed term of nine years for Senators, as set out in clause 5 of Bill C-7, the Senate Reform Act;
(b) a fixed term often years or more for Senators;
(c) a fixed term of eight years or less for Senators;
(d) a fixed term of the life of two or three Parliaments for Senators;
(e) a renewable term for Senators, as set out in clause 2 of Bill S-4, Constitution Act, 2006
(Senate tenure);
(Senate tenure);(j) limits to the terms for Senators appointed after October 14, 2008 as set out in subclause 4(1) of Bill C-7, the Senate Reform Act; and
(g) retrospective limits to the terms for Senators appointed before October 14, 2008? 
The government's argument hinges around their interpretation of S.44 of the 1982 Constitution Act, which seems excessively narrow:

79. The general scheme of Part V as it pertains to Senate reform may be simply expressed: changes to the powers of the Senate, the method of selecting Senators, the number of Senators to which a province is entitled and the residency qualifications of Senators require resort to the "7/50" formula; that is, the general amending procedure in s. 38 requiring the approval of the legislative assemblies of at least two-thirds of the provinces representing 50 per cent of the population of the provinces. All other matters concerning the amendment of the Constitution in relation to the Senate are left exclusively to Parliament by virtue of s. 44 of the Constitution Act, 1982. The text of Part V gives very clear guidance in answering the questions on this reference.
Section 44 of the 1982 Constitution Act reads as follows:

 Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons. 
My concern with the Harper Government's interpretation of things here is that they are trying to interpret the Constitution's amending procedure very narrowly.  They are essentially arguing that the general procedure (S.38) does not apply except in the circumstances laid out in S42. 

  • 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):
    (a) the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada;
    (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;
    (d) subject to paragraph 41(d), the Supreme Court of Canada;
    (e) the extension of existing provinces into the territories; and
    (f) notwithstanding any other law or practice, the establishment of new provinces.Marginal note: 
    (2) Subsections 38(2) to (4) do not apply in respect of amendments in relation to matters referred to in subsection (1).
The problem I have with this is simple - the circumstances laid out in S42 establish a base list of situations where the General Procedure applies, but I do not believe that this should be read as a closed list.  Just as S.15 of the constitution is clearly an open (inclusive) list, I think that the same principal applies to S.42 - namely that S.42 specifies a set of situations where the General Procedure must be applied, it is not an exclusive procedure.

Further, while S.44 appears to give the Parliament the right to pass legislation amending the constitution with respect to the House of Commons, the Senate and the executive branches of government, it does not appear to abrogate S.38 entirely.  In fact, there is an argument that the notion of term limits for Senators in effect modifies the qualifications of Senators, and it does so by imposing an additional criteria for membership in the Senate - namely that of having not previously sat in the Senate.  (as an aside, bill C-7 is unclear whether that term limit is a lifetime limit or if it merely means that a Senator cannot be summoned to the Senate for one full "term" after the expiry of the previous term that they sat.

From the point of view of the provinces, this is a modification of the qualifications for a Senate seat.  I will further point out that bill C-7 further only obliges the Prime Minister to "consider" the list of candidates that a province submits, but is not bound to select senators from that list.  This is a fundamental problem which renders the "election of senators" as set out in Bill C-7 as nothing more than window dressing.

The choice of wording in Bill C-7 is clearly intended to sidestep the issue of actually electing senators, and therefore be bound unquestionably to engaging with the provinces under S.38.  

The second question in the Harper Government's list is this:

2. Is it within the legislative authority ofthe Parliament ofCanada, acting pursuant to section 91 ofthe Constitution Act, 1867, or section 44 ofthe Constitution Act, 1982, to enact legislation that provides a means o f consulting the population o f each province and territory as to its preferences for potential nominees for appointment to the Senate pursuant to a national process as was set out in Bill C-20, the Senate Appointment Consultations Act? 
Per se, the Senate Consultations Act is perfectly within the rights of parliament to implement.  However, it falls into that category not because the principles of the act and the intent behind it are constitutional, but rather because it very, very carefully avoids actually touching the constitution itself.  As such, Bill C-20 does not  meaningfully change anything.  Okay, so it creates a vehicle through which each province will have a list of "Senators-in-Waiting" ... big deal.  Since it makes no change to the procedure in the Constitution through which a Senator is selected and summoned, the bill is so much window dressing.  Frankly it is window dress intended to give the illusion of the public having a say in the selection of a senator when in fact the decision remains exclusively in the Prime Minister's hands - which will give us more pork barrel Senators like Duffy, Wallin and Brazeau being selected.

3. Is it within the legislative authority of the Parliament of Canada, acting pursuant to section 91 ofthe Constitution Act, 1867, or section 44 ofthe Constitution Act, 1982, to establish a framework setting out a basis for provincial and territorial legislatures to enact legislation to consult their population as to their preferences for potential nominees for appointment to the Senate as set out in the schedule to Bill C-7, the Senate Reform Act?

Frankly, this is a redundant rehash of the second question.  As long as the government carefully stays away from actually obliging the Prime Minister to nominate from the list of provincially "elected" candidates, there is no amendment to the Constitution, and while many provinces might chafe at having a "selection framework" imposed from Ottawa, it seems to me that this is within the boundaries of Ottawa's authority.

That said, it remains utterly meaningless without amendments to the Constitution which place an onus upon the sitting Prime Minister to select Senators from the list of nominees.

4. Is it within the legislative authority of the Parliament of Canada, acting pursuant to section44 ofthe Constitution Act, 1982, to repeal subsections 23(3) and (4) ofthe Constitution Act, 1867 regarding property qualifications for Senators? 
Again, the government is trying to skate around the edges of this one.  The property qualifications in S.23(3) and S.23(4) that they reference set out a very old net worth calculation.   Where I can appreciate that such a calculation is perhaps of debatable value in today's world, the qualifications are in fact tied back to the residency requirements.  As such, it strikes me that such an amendment in fact should be handled under the S.38 General Amending Formula on the basis that it does affect the qualfications for residency.

The proposed modification that the government is trying to make here in fact weakens the residency requirements to such a degree that it makes it easier for Senators who do not in fact reside in the province that they supposedly represent to claim residency.  Again, this opens the door to more corrupt appointments such as Duffy, Wallin, Brazeau or several others that Harper has appointed as payment for political favours.

5. Can an amendment to the Constitution of Canada to abolish the Senate be acco~plishedby the general amending procedure set out in section 38 ofthe Constitution Act, 1982, by one of the following methods:
(a) by inserting a separate provision stating that the Senate is to be abolished as of a certain date, as an amendment to the Constitution Act, 1867 or as a separate provision that is outside of the Constitution Acts, 1867 to 1982 but that is still part of the Constitution ofCanada;
(b) by amending or repealing some or all ofthe references to the Senate in the Constitution of Canada; or
(c) by abolishing the powers of the Senate and eliminating the representation of provinces pursuant to paragraphs 42(1)(b) and (c) ofthe Constitution Act, 1982?
6. Ifthe general amending procedure set out in section 38 ofthe Constitution Act, 1982 is not sufficient to abolish the Senate, does the unanimous consent procedure set out in section 41 of the Constitution Act, 1982 apply? 

Ironically, it is only these two questions which in fact speak to making direct amendments to the constitution itself.  Every other question fundamentally only talks about making "window dressing" changes.

The government's question here is surprisingly naive.  Even the briefest reading of S.41 and S.42 turn up the following unavoidable reality:

Section 41(b) reads:

  • (b) the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province is entitled to be represented at the time this Part comes into force;
As much as I am sure that Harper would dearly love to ignore this, the fact is that abolishing the Senate directly affects S.41(b), which would naturally be in full force.  Therefore, the government is bound to the Unanimous Consent procedure should it choose to pursue the abolition option.

Quite frankly, Harper's desire to "reform" the Senate by avoiding engagement with the provinces is appalling.  It shows a grave disrespect on Harper's part for the fundamentals of Canada's constitution, and the fundamental fact that Canada was born out of negotiation and compromise, not absolutism.

I am very disappointed in this government's attempts to create the appearance of reforming aspects of our government that deserve to be revisited, for all that they have really done is created a fa├žade without effecting real change.

Real change is hard - it will take work, and it will take a Prime Minister to lead it who is not afraid of differing opinions.

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