On Senate Reform - Harper's Way

Earlier this week, Stephen Harper basically tried to make Senate Reform in Canada the province's problem to sort out.  More or less, he said that he wasn't going to appoint any more senators until the provinces come up with a plan to reform or abolish the Senate.

Harper has finally figured out one thing - namely that Senate reform cannot be done by legislative fiat, nor can he simply bully his way through.  Any meaningful reform has to have actual leadership to drive it.  Harper doesn't want to lead, he wants to dictate.

Basically, what Harper did was a "Halt or the dummy gets it" hostage taking approach.  This is not the approach of a leader, but rather that of a manipulator who doesn't understand how to build consensus.  Consensus among the provinces is not easy to build.  It will take being open to negotiation and careful consideration.

Harper has had the last decade to build consensus between the provinces and get the reform process rolling along.  Instead, he has treated the provincial premiers like dirt, tried to play them off against each other and generally has acted as a force of division.  On the Senate file, he stuffed it full of cronies and bag men, it blew up in his face.  Then he tried to "reform" it by proposing to do so through legislative fiat rather than through the Constitution's amending formula.  When the Supreme Court pointed out how every one of his proposals was unconstitutional, he gave up and went into a sulk.

Now, after watching Mulcair rise far above his expectations in the polls, Harper comes out with a passive-aggressive "it's not me, it's you" approach to the Senate file.  This is not leadership, it is a gross failure to lead.  

Harper Tries To Foment A Crisis

Harper has taken a surprising number of losing cases to the Supreme Court of Canada.  Most, if not all, were obviously places where the government's position is one that is in direct contradiction with the Constitution of Canada.  Even a relative neophyte in Constitutional law in Canada can spot that, whether it is Harper's desire to "reform" the Senate or the government's daft position on prostitution.  

Now we have the CPC caucus starting to trot out the "undemocratic" talking points.

Dan Albas, the MP for Okanagan-Coquihalla, says that while he respects the courts he also believes an increasing number of groups are using litigation to advance policies the government will not put forward. 

"Often the Plan B is to do an end-run around our democratic process and turn to the courts where it seems some judges are quite happy to engage. This can result in decisions contrary to what have been decided in our democratic process," Albas told CBC Radio's The House.

Let's see ... the government is unwilling to engage with the issues that various groups are raising (presumably on ideological grounds, given the pattern of the Harper Government), so they take it to the courts.

First of all, that means that these groups are raising issues which are not just minor problems, but in fact have a legal basis where the current policy or laws are in fact inconsistent with the fundamental principles of Canada's legal system and laws.

Second, if the government is unwilling to engage on these issues, they leave the public with little other option but to force the matter by pursuing justice in the courts.

"Basically what you're having is a judge can overturn and then cost the taxpayer a lot of money without any accountability or representation on their behalf," Albas said. 

... 

The British Columbia MP said it's important to ask whether there is the right balance between the executive branch and the judicial branch to make sure every Canadian is well-represented. 

"If citizens through the democratic process are unable to make policy decisions because of unelected judges and well-financed interest groups, I submit we collectively lose," Albas said.

Well, we already know that Harper views the Constitution of this country as an impediment to his goals.  It stands to reason that he is also going to see the judiciary and any other branch of government that would dare challenge his wisdom as a bad thing too.

The Conservatives are basically taking the stance that as the governing party, they have a right to decide what issues they are going to address and when.  This is true ... to a point.  However, the courts can declare a given law or policy as illegal / unconstitutional on a variety of grounds when a case is put before them.

This is not "undemocratic" in the least.  In fact it is one of the cornerstones of a healthy democracy.  There are checks and balances in place which curb the power of the "democratic majority" (which I will point out in the last election was effectively just over 20% of the eligible voters) to run amok.

The point of an independent judiciary whose sole job it is to study and interpret the law of Canada is to ensure that the legislative and executive branches of our government cannot arbitrarily abuse the rights of citizens.  Make no mistake about it, what Harper proposed doing with the Senate abused your rights every bit as much as some of his laws.  By attempting to undermine the amending formula, he was effectively trying to set a precedent that the executive branch could propose and enact radical changes to the foundation of this country's laws without engaging with the provinces - thereby negating your democratic voice at not one level of government but two levels of government.

The judiciary in Canada isn't being "undemocratic" at all.  It is the Harper Government which is being undemocratic, and attempting to impose the tyranny of their followers on all Canadians without being held accountable.

Mr. Harper: Can You Even Read?

If I didn't know better, I'd swear that Harper doesn't know how to read a legal decision.  Yesterday, in Question Period, Harper said the following:

“The Supreme Court has ruled in its wisdom that the federal government can neither abolish the Senate nor, in fact, can the federal government actually propose reforms -- significant reforms -- to the Senate,” Harper said in the House.

This is complete nonsense.  The Supreme Court ruled that the Federal Government cannot unilaterally alter the Senate.  In other words, the Supreme Court ruled that changes to the Senate require the government to work in the framework of the Amending Formula embedded in the Constitution of Canada.

“That is all now, according to the Supreme Court of Canada, within the purview of the provinces. So my position has not changed. If the provinces believe as I do that there should be reform, they should bring forward those reforms forthwith. If they don’t believe that, they should bring forward amendments to abolish the Senate.”
Read more: http://www.ctvnews.ca/politics/provinces-should-propose-senate-reforms-forthwith-harper-says-1.1798071#ixzz30NXb5Yo6

Apparently, this is as close to negotiating consensus as Harper can get.  Acting like a petulant little child who has just been told "no, you can't have all the cookies", he tries to shift responsibility to somebody else.  In this case the provinces.

Frankly, if Harper wants to change the Senate, he is responsible for putting forth a vision for what a revised Senate should look like, and then work with his peers - the provincial premiers - to come to a consensus.  If he cannot build consensus among the provinces, that is his failing.

The amending formula for Canada's Constitution is a neatly crafted package which ensures that you can't make arbitrary changes to it without actually engaging with the rest of the country.  It requires that someone be able to foster consensus among the provinces to make amendments.  This is a good thing - it stays the hand of an autocrat, and requires actual leadership to achieve meaningful change.

Brian Mulroney was at least willing to try.  Both the Charlottetown Accord and Meech Lake Accord ultimately failed, but not because Mulroney was unwilling to negotiate with the provinces.  Instead, Harper sits there and acts like a petulant little child because the Supreme Court essentially told him to go do his job as Prime Minister.

Stephen Harper's legacy will be the redemption of Brian Mulroney.

What The Senate Ruling Says About Harper

The Supreme Court of Canada's ruling on the Senate Reform questions that Harper put to them last year came out today.  The ruling itself is not terribly surprising, but what is more interesting is Harper's reaction.

Harper said he had no option left after the high court concluded that no major change can be made to the much-maligned Senate without a constitutional amendment supported by most or all the provinces. 

That's a politically risky and potentially divisive route that Harper has no intention of taking. 

"We know that there is no consensus among the provinces on reform, no consensus on abolition and no desire of anyone to reopen the Constitution and have a bunch of constitutional negotiations," a defeated-sounding Harper told a business audience at an event in Kitchener-Waterloo, Ont.

So, Harper isn't a big enough leader to even attempt to bring the provinces together and try to guide them to a consensus on this matter?

There is only one kind of person who will not attempt to foster consensus among their peers at a moment like this:  an authoritarian bully who is afraid to face any kind of dissent.

Harper has never brought all of the premiers together for a conference since coming to power in 2006.  He doesn't think he has to ... and more to the point, he obviously doesn't have it in him to even consider the prospect of having to negotiate with the provinces to move things forward.

I don't think the provinces are going to agree with Harper on Senate Reform anyhow for one simple reason - what Harper wants to do to the Senate would create a situation that is even worse for Canada than the current mess.

Even more horrifying to Harper's authoritarian sensibilities is the idea that he might have to negotiate with Quebec - a province which he has snubbed at every turn since 2006 and whose voters have shown exactly zero inclination to even grant him the time of day.

Strike 4: Harper Cannot Unilaterally Reform The Senate

The Supreme Court issued their ruling on the Senate Reform Consultation questions that Harper put before them last year.  

In a unanimous decision released Friday, eight judges of the top court concluded that implementing fixed terms for senators or provincial elections for Senate candidates would require the consent of seven provinces representing half the population. The government had asked whether it could legislate these changes on its own.

On the key question of how the Senate could be abolished, the court said the consent of all the provinces would be necessary. 

The only reform the government can make unilaterally, according to the court, is to eliminate the archaic requirement that senators must own at least $4,000 worth of property in the province they represent. 

There are few other interesting highlights from the ruling:

But the court said the Constitution requires a lower elected and upper appointed legislative chamber, and that the contract between the two is "not an accident of history." Executive appointment of senators, rather than election, was deliberately chosen by the framers of the Constitution Act to allow the Senate "to play a specific role of a complementary legislative body."

An elected Senate, the court said, would be a rival to the House of Commons and would give "democratic legitimacy to systemically block the House of Commons." 

On  abolition:

The court found that the Senate plays a crucial role in any constitutional amendment by its ability to delay a change proposed by the House of Commons. 

The very functioning of the constitutional amending formula would be at stake if the Senate were to disappear, said the Court, concluding that all the provinces — not just seven of them — would have to agree with the federal government on a decision to eliminate the Senate.

I will download the full ruling and review it later.  Such documents are usually fairly complex reading, and will take me a while to fully appreciate.  I agree with the SCoC in principle on this, but I find myself wondering if they have overlooked the "window dressing" aspects of how Harper has proposed to do things in the past.

At the end of the day, it boils down to Harper will have to negotiate with, and create a consensus among the provinces in order to reform the Senate.  Harper hasn't met collectively with the Provincial Premiers since he came to power in 2006 ... he's not a man interested in or capable of generating consensus.

On Bullying and Thuggish Behaviour In Canada's Politics

As a human being, I see Rob Ford as a tragic character.  The man is so obviously in over his head it's not even funny.  His closest advisors and family have enabled his proclivities for substance abuse, and I would go so far as to suggest that he may well be little more than the puppet on the throne rather than the master of his actions.

As a Canadian, I am appalled by the Fords and their behaviour in the last few weeks.  It is not that their behaviour is embarrassing to Canada - it is, but that is secondary to what I want to talk about here.  It is the way in which the Fords throw their weight around (literally and figuratively) in council.

One of the favourite "escape hatches" of the far right in this country when confronted with their own misdeeds is to try and accuse their critics of exactly the same failing.  We've seen it time and again with the CPC in the House of Commons.  How many times, when confronted with their own fiscal mismanagement have we heard the Harper government dredge up past scandals?  Countless.

In the case of the Fords, it's a more direct form of bullying.  When Rob Ford was confronted in council session about his drug use since being elected, Doug Ford turns around and accuses the councillor questioning his brother of using marijuana.

"Everyone in this chamber is coming across as holier than thou, lily white," Ford began before setting his sights on Councillor Denzil Minnan-Wong, who earlier filed a motion demanding Ford take a leave and apologize for lying about smoking crack cocaine. 

"The question is: have you ever smoked marijuana?" Ford asked to surprise. 

Ford repeated the question several times, raising his voice. 

"It's a question. It's simple. A yes or a no, have you smoked marijuana?" he asked as fellow councillors called for a point of privilege and speaker Frances Nunziata attempted to calm things down. "The answer, I guess, is yes. The answer is yes, I guess." 

Ford then called on other councillors to stand up if they had tried smoking pot.
"The whole council will stand up. So don’t come across that you're holier than thou," he said.

There is a fundamental issue with this kind of "counter-attack" - it attempts to draw a false moral equivalence between actions.  Whether or not councillor Minnan-Wong had smoked pot is immaterial.  The question is no longer about whether Rob Ford has used crack cocaine, but rather the fact that he has lied to council and Toronto as a whole about it.

Then, in an interview on US network Fox News, Rob Ford continues the process of escalating threats against various members of council:

If that’s all they’ve got well you know what if you wanna get nasty we can get nasty, and I can start digging up dirt on every single one of those politicians down there but they don’t want to so you know what? And like we said if you wanna do drug testing I’ll do drug testing but when my brother asked the question to Council Member Wong(?) have you ever done marijuana or cocaine the whole council erupted and said you can’t say that you can’t say that? Why? They can say it to me. Why can’t the other Councillors answer those questions?

Notice the attempt to make the issue of Rob Ford's behaviour as mayor a "tit-for-tat" issue, as if there is no difference between individual councillors' roles and the position of Mayor.

Today, in a council meeting, we have the Fords throwing their literal weight around in council - knocking over one of their peers.

What is the problem here?  It is the insistence on the part of the Fords that nobody should ever dare question them or their politics.    Instead of confronting issues directly, these goons insist on trying to turn the issues around on their opponents and make their opponents "responsible" or somehow "equally bad".

This is ultimately very damaging to political discourse.  It is the approach of childish politicians who still haven't figured out that politics in a democracy is not about absolute power, or always getting "your way", but rather it is the art of compromise.  It is precisely this unwillingness to compromise that has doomed Harper's desire to reform the Senate to the wastebasket.

[Update 19/11/2013]
Article from CBC posted late yesterday:  Rob Ford Says He's Quit Drinking

Another aspect of this is the unwillingness to take responsibility for your actions, or to recognize the position that one is in as a public leader.

Consider the following from CBC's interview with Rob Ford:

Mansbridge asked Ford if he's been drunk while driving. Ford told Mansbridge he hasn't driven while drunk but may have driven after moderate drinking. 

"All of us have done this," said Ford. "Whoever has a licence. You've gone to a dinner party or a restaurant with your wife and had a glass of wine. Do you drive? Absolutely you drive. I've never been drunk and driven." 

Ford answered "no" when Mansbridge asked if the mayor did crack more than once during his time as mayor. Ford described his crack use as "an isolated incident" that happened more than a year ago. 

Ford said he was "probably pretty inebriated" when the video was shot of him doing crack cocaine."You know what happens when you get to a certain point, when you're very inebriated. You might remember this, you might not remember that. There's blackout period I think we've all gone through. Some people are perfect. I'm not."

This sounds like a teenager caught doing something particularly stupid and is being reprimanded by their parents.  "Oh, everybody else does it".  Sorry, Mr. Ford, but that doesn't cut it.  First of all, not everybody else does it, and just because "everybody else was doing it" doesn't mean you should do it.

"There's two types of people: poor people and rich people and I side with the poor people," said Ford. "I've been honest and I'm being punished for it." 

Ford has been "honest"???  You've got to be kidding me.  Apparently we're supposed to ignore the fact that when rumours of the first video turned up, he denied its existence entirely.  He and his brother went after the Chief of Police for mentioning that they had recovered that video, until a day or two later Rob Ford admitted to having smoked crack cocaine.  No, Mr. Ford, the issue is precisely that you have not been honest about this.

Further, Rob Ford is not being "punished" for this.  He has been the advocate for "tough on crime" - zero tolerance for drugs, alcohol and gangs, and yet that is precisely what he has been doing.  The "lock em and through away the key" justice that Ford has been advocating is not what he is being subjected to.

City Council has apparently decided that Rob Ford's antics of late are unacceptable in the man who is the public face of Toronto.  If that's the worst punishment that he's receiving, he should be thankful.

Lastly, Mr. Ford and his supporters should perhaps consider the "But everybody else does it" reasoning a bit - particularly in the context of what their respective parents would say.  Mine would rightly point out that "I had a choice not to follow the pack".
[/Update]

Shorter Coyne On Senate Reform: Give All The Power To The PMO

In the wake of this week's Supreme Court Hearings on the Senate Reform consultation questions that the Harper Government posed last spring, the National Post's Andrew Coyne has postulated that the provinces shouldn't be part of the amending formula.

The government's lawyers have gamely maintained that much of tis short-term agenda for Senate reform - term limits, consultative elections and so on - could be pursued unilaterally.  At the other extreme, abolition, they submit, could be achieved under the Constitution's general amending formula:  seven provinces with 50% of the population. 

The consensus view is that the feds are out to lunch.  Almost no one supports them in their first position; and while three provinces agree that seven-and-fifty is sufficient for abolition, the rest insist that unanimity is required.   And if that is so, everyone seems to agree, it's not going to happen.

Mr. Coyne seems to think that this is an unreasonable burden for our illustrious PM to have to bear.

If every province's consent - and by province, of course, we mean premier - were required, then any one premier could stop it.  Thus each would have an incentive to demand the moon as the price of his consent.  The whole process would bog down in the same mire that sank Meech Lake and Charlottetown.

Suggest a national referendum as a solution and be prepared for the scorn that blows your way.  Meaningless!  No legal consequence!  Whatever the people might wish the Constitution requires the premiers' consent to amend it.  If the premiers don't want it - even if one premier doesn't want it - then it's not on.

Of course, Mr. Coyne is conveniently mischaracterizing what happened with the Meech Lake and Charlottetown accords.

Meech Lake died in the Manitoba legislative assembly:

In Manitoba, however, things did not go as planned. With many First Nations protesters outside, the legislative assembly convened to approve the accord. Unanimous support was needed to bypass the necessary public consultation and Member of the Legislative Assembly Elijah Harper raised an eagle feather to mark his dissension. Harper opposed bypassing consultation because he did not believe First Nations had been adequately involved in the accord's process. 

Even though a legal route was found to give Manitoba more time (the deadline would be extended three months, with Quebec being able to re-approve the Accord), Clyde Wells and opposition leader Thomas Rideout agreed to cancel the planned free vote in the Newfoundland House of Assembly, because the outcome would have most likely been a refusal. The accord was officially dead.

The Charlottetown Accord died in precisely the kind of mechanism that Coyne suggests going forward - a referendum.

What Coyne is really playing to is precisely the weakness that I argued earlier will prevent Harper from ever achieving meaningful parliamentary reform - his unwillingness to engage with the collective needs and interests of the premiers.  Ironically, both Meech Lake and Charlottetown accords did just that and at that level were successful enterprises.  Meech Lake died in large part on Elijah Harper's vote in the Manitoba Legislature, and in part because support for it collapsed in Newfoundland subsequently.

In fact, the Meech Lake accord's failure raises an additional point which Coyne is overlooking - that is the impact of constitutional amendments on First Nations peoples in Canada.

Constitutions aren’t supposed to be easy to amend. But when a Constitution cannot even be amended in obedience to the desires of the vast majority of its people, it is no longer the embodiment of their highest ideals of government. It is an impediment to them. It is less a basic law than a straitjacket. 

The problem isn’t so much the level of consent that is required, but whose. The Constitution is supposed to belong to the people. In fact it belongs to the premiers — a legacy of the patriation round. Before then it was unclear just whose consent was required. The British North America Act was silent on the matter: As an act of the British Parliament it was assumed that any amendments to it would be enacted by the same means.

This is where I get rather annoyed with Coyne, who is clearly playing a poorly thought-out bit of populist politics.  In fact, if he thought about it for even five minutes, he would realize why the amending formula in the Constitution is written as it is.  One of the issues in Canada is that our population is heavily concentrated in a couple of regions, potentially to the detriment of other regions.  The general amending formula is designed to ensure that the two most heavily populated provinces (Ontario and Quebec) cannot "gang up" on other provinces and create significant imbalances in power that would negatively impact smaller population centers like PEI, or Saskatchewan.

• 38. (1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by(a) resolutions of the Senate and House of Commons; and(b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces.Marginal note:Majority of members 

  (2) An amendment made under subsection (1) that derogates from the legislative powers, the proprietary rights or any other rights or privileges of the legislature or government of a province shall require a resolution supported by a majority of the members of each of the Senate, the House of Commons and the legislative assemblies required under subsection (1).Marginal note:

  Expression of dissent(3) An amendment referred to in subsection (2) shall not have effect in a province the legislative assembly of which has expressed its dissent thereto by resolution supported by a majority of its members prior to the issue of the proclamation to which the amendment relates unless that legislative assembly, subsequently, by resolution supported by a majority of its members, revokes its dissent and authorizes the amendment.Marginal note:

  Revocation of dissent(4) A resolution of dissent made for the purposes of subsection (3) may be revoked at any time before or after the issue of the proclamation to which it relates.

This is difficult for Coyne, and for Harper, to swallow.  Not only does it require that the Federal Government engage with the provinces, but that it do so as peers of the provinces.  Referendums are a useful tool in making certain political decisions, but not necessarily all of them.  In the case of amending Canada's constitution, the prairie provinces have long argued that the interests of Alberta, Saskatchewan and Manitoba are too readily suborned to the interests and desires of Quebec and Ontario when it comes to matters decided solely by representation by the will of "the majority population".  The amending formula of the Constitution is designed to ensure that regional interests are held in balance with those of the concentrated population.

In short, if Harper isn't willing to engage with all of the provinces in the spirit of political discourse and compromise, then chances are his much vaunted desires for Senate reform will come to naught.  Other Prime Ministers before him have managed to achieve political consensus among the provinces, I fail to see why this is suddenly "impossible".  Difficult, perhaps, but hardly impossible - just beyond Mr. Harper's willingness to attempt.

I for one would not want to see sole authority over this nation's constitution in the hands of Parliament alone - especially not this parliament or the current PM.  The risk of malignant dictatorship is far too great.

On Senate Reform

The notion of a referendum on Senate abolition has been percolating around more publicly again.  This isn't necessarily a bad idea in itself.  As I pointed out back here, it really doesn't matter if such a measure were passed in a public referendum.  Harper still ends up obliged to work within the framework of the General Amending Formula to make the changes required.

Where the Senate is concerned, I'm no fan of abolition.  While I am no fan of its current form - it has long ago become a tool of political patronage.  Although there are some excellent Senators in the chamber who truly do take their job to heart, the fact is that the current model of appointments renders their credibility on any issue suspect.

If we were to outright abolish the Senate, we would amplify the already apparent deficiencies in the existing House of Commons - in particular the problems that our First Past The Post voting system creates, as well as the inherent imbalances of the current representation by population model.  The Senate attempts to counter balance that by making Senators responsible for representing a region of Canada.

Allow me to make a proposition with respect to the future shape of our nation's Senate.

I still believe that there is a validity to having a body in Parliament whose job it is to act as a counterweight to the predations of the often highly partisan politics of the House of Commons.  Some may argue that we "don't need a parental body" overseeing the acts of the House of Commons.  In so far as the denizens of the House of Commons are ostensibly adults, that may be true.  However, if the last decade's shenanigans have shown us anything, it is that partisan politics can push any politician to make less than sound judgments which are not in the best interests of the country as a whole.

At its core, evaluating the legislative acts of the House of Commons from a different perspective is not a bad thing.  However, before delving fully into the powers that a revised Senate should have, let us address its composition and the selection of Senators.

First, the notion that the Senate's representation should be regional serves as an excellent counterbalance to the House of Commons more direct degree of representation.  I propose that we keep this aspect of the Senate as it stands today, with the minor adjustment of providing each province with an equal number of Senators.  The current allocation is somewhat lopsided reflecting the fact that in 1867 several of our current provinces were part of territories.

Instead of appointing Senators, let us use the opportunity to make it less partisan by shifting to a proportional representation model for each region.  We have talked about this numerous times with respect to the House of Commons, but for good reason it is a change which too few people are willing to risk in the house that they understand to be their primary point of representation in to our nation's government.

Should the Senate's legislative powers be amended?  I'm not entirely sure on this matter.  In some respects, moving to an elected Senate creates an expectation that the resulting body will have more direct power act to represent the electorate which selected it.  Whether this is a consequence of the legislative powers the Senate has today, or simply a matter of a lack of communication from the current Senate is a point of further discussion.  

Why Harper Will Never Reform The Senate

Protestations aside, Harper will never reform Canada's Senate.

Harper's 45-minute remarks included only a brief reference to the main political headache that has shaken his party since May, the Senate expense scandal. He did not acknowledge the coverup allegation that has kept the controversy in the headlines. 

The party leader blamed the "courts" for standing in the way of Senate reform. He appeared to be referring to a recent Quebec appeal court ruling — the Supreme Court of Canada has yet to give its opinion on how to achieve change in the upper chamber. 

The appeal court said last month that the federal government had no right to create Senate elections and set term limits without seeking provincial approval.

The problem is that Harper will NOT engage with the provinces.  He has avoided the conferences between Ottawa and the Premiers like the plague since day one.  Yet, to make any material changes to the Senate, he must do this.  The amending formula in the Constitution is quite clear on the matter.  (To the point of obviating the need for the current reference question before the position)

General procedure for amending Constitution of Canada

38. (1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by(a) resolutions of the Senate and House of Commons; and(b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces.Marginal note:Majority of members 

(2) An amendment made under subsection (1) that derogates from the legislative powers, the proprietary rights or any other rights or privileges of the legislature or government of a province shall require a resolution supported by a majority of the members of each of the Senate, the House of Commons and the legislative assemblies required under subsection (1).Marginal note:

Expression of dissent(3) An amendment referred to in subsection (2) shall not have effect in a province the legislative assembly of which has expressed its dissent thereto by resolution supported by a majority of its members prior to the issue of the proclamation to which the amendment relates unless that legislative assembly, subsequently, by resolution supported by a majority of its members, revokes its dissent and authorizes the amendment.Marginal note:

Revocation of dissent(4) A resolution of dissent made for the purposes of subsection (3) may be revoked at any time before or after the issue of the proclamation to which it relates.

If you go back and take a look at The Harper Government(tm) factum, much of their approach to the questions is essentially to ask the Supreme Court if the proposed amendment can be done without resorting to the General Procedure.  I may not be a lawyer, but I don't believe that any substantive change to the Senate, including abolition as Pierre Poilievre was musing about.

Poilievre said if the Supreme Court rejects the reform bill, then it will be up to the provinces to make changes. 

"The provinces have to pursue abolition. If that's the option, we believe seven provinces representing 50 per cent of the population have the power to pursue abolition, and we would not stand in their way if they should so decide."

Harper's unwillingness to engage with the Premiers is at the core of the problem for him.  While he is willing to meet with premiers individually, in a conference setting he knows full well that he cannot foster the kind of consensus needed to get an agreement on a constitutional amendment.  Harper is not exactly the kind of leader who builds consensus - he dictates what he wants.

In short, if he can't do it by a straight act of Parliament where he can hold a substantially large club over the votes of his caucus to get his way.  He has always been "my way or the highway", and he whines like a stuck pig when something happens like the courts ruling against him.

Unless Harper can build real consensus among the premiers, he will get nowhere on Senate reform.  Poilievre's musings about abolition are interesting in that he is basically saying that the provinces will  "pursue abolition" - pushing away responsibility for the Federal Government's role in this matter.  Abolition is the simple question, but I think that the legal advisors to any premier would correctly point out to the premiers that moving to abolish the Senate would naturally entail additional changes to ensure that the legislative and executive branches of our government are appropriately held in check - especially in an era where so much power has become concentrated in the PMO.

The second problem that would show up almost immediately is that the required legislation still has to be drafted by and passed in Parliament, as well as in the provinces.  For those of us who remember the Meech Lake and Charlottetown accords, which were be far less contentious than Senate reform would be, getting that passed at all levels required is a process that requires significant involvement at all levels of government.

Harper is simply not capable of fostering the kind of environment needed to achieve this.

More On Duffy and Conservative Corruption

I must admit that while I really don't much like Mike Duffy and the seemingly endless stream of evidence of corruption with him at the root of it is fatiguing to read about all the time, it is still an important issue.

I am not going to argue about Senate Reform in this post - I remain unconvinced that the Duffy/Wallin/etc expenses scandal really points to an urgent need to overhaul the Senate - in fact, I am much more of the opinion that framing the expenses scandal in those terms is a red herring intended to distract the public from the real problems.

So, what are the issues then?  Corruption.  Starting with a Prime Minister who has created an environment in his party that encourages cheating, disrespects the structure and processes of parliament and by definition encourages abuse of the public trust.

Let's take a step back in time, shall we?  Remember 2006, when Paul Martin's minority government fell and an election sent the keys to 24 Sussex to Stephen Harper and his Conservatives?  I thought you might.

In 2006, we got the first overt clues as to Harper's agenda and what he has fostered in the CPC since becoming the party leader.  

The first clue was the "In-and-Out Scam", a thinly disguised money laundering scheme that Harper's campaign people dreamed up to sidestep campaign spending limits.

Then, we learned that the CPC had written and distributed a manual for their MPs to disrupt the business of parliament.  This is particularly concerning when you realize that this manual was part of the operating procedures for a party that was now in power.

Fast forward to 2008, and we have Prime Minister Harper calling a snap election - a snap election which flies in the face of his vaunted "fixed elections dates" law.  Now, per se, Harper didn't entirely break his fixed election dates law, because it did not place any limits on the Prime Minister's ability to approach the Governor General to dissolve parliament.  However, he did violate the spirit of his own law, which was the result of long standing complaints by the Conservatives (and the forerunner Reform party) about the "political game playing" around election calls.

Then, in 2011, we see the worst possible forms of electoral fraud taking place - voter suppression tactics.  On top of that, Harper has seen several of his MPs pay the price for breaking campaign finance rules - most notably Peter Penashue, but several others as well.

So, when you find yourself looking at Harper's ill-behaved Senate appointees and wondering what's going on, I think you need to look back at Harper.

I have no problem with a discussion around Senate reform, but let's make it a constructive discussion that isn't coloured by a knee-jerk reaction to corruption instigated by a Prime Minister whose acts have created an environment where corruption, undermining and fraud are the rule.

The Rot Starts At The Top

Regular readers of this space will know that I am no fan of Prime Minister Harper.  

Yesterday's revelation that a "boot camp" for new Conservative Senators explicitly told the new Senators that partisan travel was a legitimate expense makes me downright furious.

Three former Conservative senators at the heart of a spending scandal were given clear directions from their leader in the upper chamber that they could bill for certain partisan — that is, political — travel when they first arrived in the Senate. 

The directions were given during a two-day “boot camp” for new Tory senators that outlined expense-claim dos and don’ts, expectations for senators, and a warning to be careful with how they spent Senate money. 

Let me be abundantly clear here:  The Senate, and the House of Commons, exist for conducting the business of this country.  NOT the business of the Conservative Party of Canada or any other party.  That the Harperites would give explicit instructions about this tells us a lot - and none of it is acceptable.

First, that they would even state that any kind of partisan travel is an acceptable expense is plain wrong. It speaks to a degree of intent to abuse the system.  In essence, the new Senators are being told "break the rules, but don't get caught - nudge, nudge, wink, wink".  I suspect that if Duffy or Wallin had only done one suspect trip in a year, nobody would be particularly outraged.  It would fall under the "cost of doing business" kind of logic that most of us understand.  However, that isn't what happened.  Instead, these two Senators were put into a position where suddenly they were doing a lot of travel on questionable business, and apparently the CPC machinery wasn't willing to invest some of the millions it raises in donations every year into funding this travel.

Second, this is little different to me than the "How to Disrupt Parliament" manual that Harper handed out to his MPs back in 2006.  It speaks to a clear intent to abuse the privileges and rights of power for partisan gain.  Make no mistake about it, the tone in the party that makes this kind of abuse of parliament and taxpayers starts at the top - look in the direction of the PMO when assigning responsibility - the man at the top should be held accountable for this.

Like the Economic Action Plan ads which are really little more than CPC propaganda, what we have here is another example of a government which is willing to abuse taxpayer funds for partisan purposes.  Canadians are paying for Harper to publish partisan propaganda - no more, no less.  Now we find out that Harper's Senate appointees are being given specific instructions on how to abuse the funding of the Senate so that they can further their partisan work.  Makes one wonder just how much of the same kind of thing is going on in the House of Commons with his caucus.  (I know that I seldom see anything from my MP except for the occasional leaflet which is completely devoid of actual content)

More so than any Prime Minister before him, Harper has gone to enormous lengths to corrupt Parliament from the ground up.  From clear violations of Canada's election laws (remember the "In-and-Out campaign financing in 2006?), to electoral fraud in 2011(yes, I hold the CPC responsible for the Robocalls mess - their database was used for it, and I do not accept the "it was hacked" line), a manual for MPs on how to disrupt parliamentary business, a steady rebranding of Canada's government using CPC colours, and now we learn that the Senate has been instructed on how to abuse the finances provided to run that body.

I have seen a few apologists for the Harperites point to Mac Harb and a couple of other Liberal Senators and claim that "the system has been broken for years".  Yes, it has - no argument there.  The issue is the lengths to which Harper has abused the system, especially when he was elected in 2006 on a promise to provide Canadians with more open and accountable government.  He has provided anything but.  In fact, the corruption under Harper is far, far worse than what we have ever seen on any previous Prime Minister in living memory.

The Legitimacy Of Harper's Senate Appointees

With the latest set of revelations in the ongoing Senate Scandal, we find out that Senator Wallin spends the majority of her time living in Toronto.

Frankly, I don't much care where Ms. Wallin lives.  That is largely her business - except for that part of her life where she is being paid a rather sizeable sum of money by taxpayers to be a Senator representing Saskatchewan.  (I certainly haven't seen any declaration making Ms. Wallin's residence in Toronto a part of Saskatchewan, have you?)

So, now we have Mike Duffy, allegedly representing PEI who lives in Ottawa, Pamela Wallin representing Saskatchewan who lives in Toronto, and Senator Brazeau's residence has also been questioned (although with respect to whether he is eligible for the Senate housing allowance).  I am beginning to think that we have a more serious problem facing Canada than just a couple of corrupt senators who have been taking more than their fare share from the public trough.

I think that the issue has become one of determining if any of Harper's appointees are in fact representing Canadians and their regions at all - or are they all beholden to some other role that Harper has forged for them.  We know that Mike Duffy serves primarily as a campaigning and fundraising figure (or has done), Ms. Wallin appears to be acting as an adjunct representative to a myriad of events where Harper or one of his cabinet cannot appear.  Nobody has ever figured out just what Brazeau does (other than get into boxing matches with Justin Trudeau), but I have my suspicions that there is more to it.

The underlying point here is that Harper has an ugly habit of appointing people to the Senate so that they can be paid by the public for partisan work of some kind.  The man thinks in terms of power and retaining power as if it were the only thing that mattered.

In my view, that makes all of Harper's Senate appointments suspect.  While Duffy and Wallin have simply floated to the surface as being the most prolific abusers of the system, one might imagine that there is more lurking just below the surface.  Audit every last one of them, and the ones whose "work" appears to end up having more to do with a party role than actually representing Canadians should be dismissed from their post in the Senate - immediately.

Further, the Crown in Canada should begin a process of ensuring that Senate appointments are not partisan.  While the Prime Minister can make a recommendation of someone to the Senate, the Governor General is not obliged to accept any particular nominee.  As the Queen's representative in Canada, the GG is also responsible for ensuring that Parliament is able to function appropriately.  Given Mr. Harper's propensity for making everything partisan, it seems rational to me that the GG should step in and start curbing this aspect of Mr. Harper's behaviours as it is ultimately resulting in a dysfunctional parliament that does not serve the interests of Canada and Canadians.

[Update 16/08/13]
MP Charlie Angus has a few choice words on the matter as well.
[/Update]

On The Ongoing Senate Scandal

As the summer wears on, more keeps dribbling out about the misdeeds of various Senators.  Whether we are talking about Wallin, Duffy or Brazeau the outrage that we direct towards these senators for their individual misdeeds should be directed in equal measure towards the man currently residing at 24 Sussex Dr. in Ottawa - Stephen Harper.

Remember, the key figures in this scandal were all appointed by Harper, and two of them served key roles during the 2011 election campaign - a period when it is suspected that Duffy was billing the Senate for the bulk of the travel expenses that could rightly be considered campaigning, and I have little doubt that Ms. Wallin's expenses are equally suspect during that same timeframe.

There is little doubt that Wallin and Duffy were appointed to the Senate by Harper because of their "star power" as part of the party fundraising apparatus.

The 2011 election is among the most controversial to ever take place in Canada.  Not only do we have an election where voters were deliberately misdirected away from the correct polling stations by "robocalls" which are widely understood to have been driven by data from the CPC's own voter information database, but now we are learning that Canadian taxpayers were effectively bankrolling CPC campaigning and fundraising efforts during the campaign through CPC Senators charging campaign related travel back to the Senate (presumably for "meeting with the community" over dinner or some other nonsense to justify the "Senate Business" aspect of their trip).  There have also been a number of CPC candidates whose campaign finances have been deemed suspicious - at least one a former cabinet minister who has since resigned and lost a byelection bid to regain his seat.

In short, the 2011 election gave Stephen Harper a majority not because he had the better platform, but because he lied, cheated and ultimately stole victory - and democracy - from Canadians.

My point?  Mr. Harper has fostered a culture of deception and entitlement within his party.  His "power at any cost" approach to things has created fertile ground for avarice and greed to become the dominant forces in his party.  Is there any surprise that we are finding CPC Senators with their snouts firmly in the public trough?  Mr. Harper is plainly responsible, and Canadians should rightly be absolutely furious with him for duplicity, dishonesty as well as picking our pockets.

While Senate Reform is a laudable objective to pursue, it cannot be credibly pursued by Stephen Harper - a man who has so clearly abused the trust of Canadians to such an extent.

Remember this next time you stand in a polling both with a pencil in hand and a ballot before you.

Is The PMO Above The Law?

There seems to be a mistaken belief in Harper's PMO that they are above the law.  

According to CTV, the PMO has been quietly withholding an important e-mail related to the Duffy Affair.

“My understanding is it is a paraphrase of conversations that happened,” he told CTV’s Ottawa Bureau Chief Robert Fife. “I’ve had them described to me from someone who is no longer here.”

The Feb. 20 email describes a secret deal to have Harper’s then-chief of staff Nigel Wright personally bail out Duffy, a Conservative senator who improperly claimed $90,172 in living expenses and faced the public release of an audit of his spending. 

...

After CTV News broke the story, Wright resigned and Duffy left the Conservative caucus to sit as an Independent.

The Mounties subsequently launched an investigation into Wright’s payment to Duffy. The lead investigator has contacted CTV News twice to ask about the Feb. 20 email. In order to protect his sources, Fife told the Mounties to ask the PMO for the information they need to conduct their investigation.

But insiders say the Prime Minister’s Office has been withholding that information.

Asked if Wright himself has the email in question, MacDougall said: “I can’t speak for Nigel.”

RCMP affidavits allege that three other senior PMO staffers, including Harper’s former legal counsel Benjamin Perrin, knew of the deal between Wright and Duffy.

 Later today, we have the PMO denying that they have been asked for this particular e-mail:

The Prime Minister’s Office denies it is withholding an email from the RCMP concerningNigel Wright’s $90,000 cheque to Sen. Mike Duffy.

In response to a CTV story about the email, spokeswoman Julie Vaux told Global News:

“Contrary to CTV’s reporting, our office has not been asked for this e-mail.  As we have always said, we will assist investigations into this matter,” she said in an email.

Please note the careful wording from the PMO:  "our office has not been asked for this e-mail".  The only way that this makes any sense whatsoever is in terms of the PMO playing semantics games by trying to treat this e-mail as distinct from other evidence related to the Duffy Affair.  Perhaps the RCMP's request didn't name that e-mail by its unique database identifier, or some other semantic dodge.

The PMO is quietly dodging this while fighting Corporal Horton's move to get a "Production Order" from the courts.  For the PMO to claim that they have not "received a request" for a particular e-mail smacks of the same kind of dishonesty that one expects from a fraudster when caught cooking the books.

Quite frankly, it is my opinion that Corporal Horton should gather a squad together and march down to the PMO, and demand that they turn over every last scrap of information that is related to the Duffy Affair, and every person in that office who does not cooperate is taken down to explain themselves to a judge.  This PMO, and the Prime Minister at the top of it all, seem to think themselves above the law and that the rules do not apply to them.  It is time to remind the "get tough on crime" lot that the rules apply to them just as much as the rest of Canada.

Even if Duffy has committed no crime personally, another crime has been committed:  the trust of Canadians has been abused by a hypocritical government that wants to imprison more Canadians for longer times has tried to place itself and its misdeeds outside the law.

The Duffy Scandal Keeps On Giving

In some respects, what is coming out regarding Mike Duffy this week is not really a big surprise.  However, it is important.

First up, we have a set of court document filings that bring out some very interesting points regarding timeline, and in particular how that timeline relates to the story that Harper has related to Canadians.

1. The documents reveal the RCMP is investigating Duffy over not just one, but three separate fraud allegations:

• For expenses perhaps fraudulently claimed for Ottawa housing and per diem costs, because Duffy said his primary residence was in P.E.I.
• For possible fraudulent per diem claims submitted while he was vacationing in Florida or while he was campaigning for the Conservative Party in the last federal election.
• For accepting, perhaps fraudulently, a payment from Nigel Wright, the prime minister's top aide, in exchange for a deal that would allow him to pay back his inappropriately claimed expenses quickly and without protest and for a promise a Senate report would "go easy on him."

2. Amid opposition party demands for an investigation, the RCMP, of its own volition, began investigating Duffy in March. That was two months before a Deloitte audit of Duffy's residency, commissioned by the Senate, was made public, and before a Senate committee voted to refer Duffy's expenses to the RCMP.

3. Although Duffy claimed his primary residence was in P.E.I., the documents reveal he's lived in Ottawa since 1971. However, he applied for a P.E.I. driver's licence on Dec. 22, 2008 — the same day it was announced he had been selected for appointment to the Senate.

4. In passport applications in 2007 and 2012, Duffy gave his Ottawa address as his permanent residence.

5. The documents reveal the Conservative Party initially believed Duffy owed only $32,000, an amount the party was apparently willing to pay. This amount may refer to the $34,000 the Deloitte report calculated Duffy had claimed in housing costs in Ottawa and per diems during the 18-month period of Deloitte's examination.

It is not clear why the party didn't know that Senator David Tkachuk, at the time chair of the Senate committee on internal economy, had written Duffy on Feb. 27 telling him he actually owed $90,172.

6. Lawyers for Nigel Wright, the prime minister's former chief of staff, told the RCMP that when Wright gave Duffy $90,000 he didn't know about any fraudulent claims on Duffy's part. But Wright was in contact with Senator Tkachuk during the time Deloitte was preparing its report, and it was Deloitte that discovered Duffy had claimed per diems for being on Senate business while on vacation in Florida.

7. It is not clear why the chair of the Conservative Fund, Senator Irving Gerstein, thought it was OK for the party to bear the cost of $32,000 for Duffy, but not $90,000.

8. Wright, in a statement given when he resigned, said he accepted "sole responsibility" for the decision to give money to Duffy. But the documents reveal that Wright's lawyers told the RCMP that three other senior people in the Prime Minister's Office knew about the $90,000 cheque, as did Gerstein.

At Huffington Post, they took the time to go through the documents and compare the timeline in the court filings with the version of the story that Harper has been trying to convince the public is "the real story":

Under intense questioning about the affair throughout the spring, Harper repeatedly insisted that his chief of staff, Nigel Wright, acted on his own when he decided to give Duffy $90,000 to reimburse the Senate for invalid expense claims.

"Those were his decisions. They were not communicated to me or to members of my office," Harper told the House of Commons on June 5.

But the RCMP, which has launched a criminal investigation into the matter, says in a court document that Wright recalls telling three other senior people in the Prime Minister's Office about the transaction.

Wright had not been interviewed by the Mounties at the time the document was filed in court by lead investigator Cpl. Greg Horton, on June 24. But the document recounts a June 19 meeting with Wright's lawyers, Patrick McCann and Peter Mantas.

The lawyers told the RCMP that Wright recalls telling his assistant, David van Hemmen; Harper's legal adviser, Benjamin Perrin; and Chris Woodcock, director of issues management in the PMO, about his intention to personally give Duffy the money to reimburse the Senate.

Anyone who believes that Harper was not fully briefed on what was going on in his own offices has to be either deluding themselves or they would believe someone trying to sell them the Brooklyn Bridge on the street.

Beyond Harper lying to Canadians about this whole fiasco, is the emerging evidence that Senator Duffy was not, and is not today, a resident of the region that he is supposedly representing.  This isn't just a matter of recently moving either.  Duffy has lived in Ottawa since 1971, and two passport applications list his Ottawa address as his permanent residence.

Why is this significant?  Because it calls into question whether Duffy should even be permitted to sit in the Senate as a representative of Prince Edward Island.

Referring to the Constitution documents for Canada, we find the following qualifications for a Senator:

Qualifications of Senator
23. The Qualifications of a Senator shall be as follows:

1. (1)  He shall be of the full age of Thirty Years;
   
2. (2)  He shall be either a natural-born Subject of the Queen, or a Subject of the Queen naturalized by an Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of One of the Provinces of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, before the Union, or of the Parlia- ment of Canada after the Union;
   
3. (3)  He shall be legally or equitably seised as of Freehold for his own Use and Benefit of Lands or Tenements held in Free and Common Socage, or seised or possessed for his own Use and Benefit of Lands or Tenements held in Franc-alleu or in Roture, within the Province for which he is appointed, of the Value of Four thousand Dollars, over and above all Rents, Dues, Debts, Charges, Mortgages, and Incumbrances due or payable out of or charged on or affecting the same;
   
4. (4)  His Real and Personal Property shall be together worth Four thousand Dol- lars over and above his Debts and Liabilities;
   
5. (5)  He shall be resident in the Province for which he is appointed;
   
6. (6)  In the Case of Quebec he shall have his Real Property Qualification in the Electoral Division for which he is appointed, or shall be resident in that Di- vision. (13) 
   

At the time he was appointed to the Senate in 2008, he didn't even hold a driver's license from PEI.  In other words, all of his legal documentation likely showed that he resided in Ottawa.  I don't think that this has changed one iota.  For the sake of appearances, Duffy applied for a PEI Driver's License in 2009, but a subsequent passport application in 2011 listed his Ottawa home as his permanent address.

In short, Duffy fails the residency test in the first place.  Given that the Governor General appoints Senators on the advice of the Prime Minister, I think it is fairly clear that not only is Duffy's seat in the Senate highly suspect, but further that Harper is complicit in a fraudulent appointment.

Senate Reform - The Right Way and the Harper Way

When it comes to the idea of rehabilitating our country's Senate, there are a few schools of thought out there.

We have Mulcair pushing the line of abolition - get rid of the thing entirely.  I can appreciate the visceral emotional response to the recent events which have landed several senators in hot water.  That said, I think that abolition would be a foolish approach to take.  Of all things, the Senate has demonstrated repeatedly its value in holding back some of the worst excesses of Harper's legislative agenda.

When it is not being stacked with partisan appointments by the Prime Minister, the Senate serves a useful purpose in cross-checking the legislative activities of a House of Commons which is often driven by the whims of the voters or worse, by the ideological affiliations of the MPs.

The next approach open to reforming the Senate is a combination of legislation and policy rules governing the Senate.  Harper has tabled several very flawed pieces of legislation which are intended to "reform" the Senate since 2006.  None of these have been passed into law.

In my opinion, there is an enormous problem with using legislation to modify the ground rules of the Senate.  The first is in fact Harper's own actions with respect to fixed election dates.  He brought in a piece of legislation that (in theory) dictated that Canada would have elections on a 4 year calendar much like the United States does.  Then he turned around and dissolved parliament partway through that 4 year mandate, effectively rendering his own law absolutely irrelevant.

The first problem with legislative approaches like this is that they are a layer of legislation that rests on top of the foundation of the Constitution documents.  While drawing more detailed boundaries in law than those provided by the Constitution has a certain validity, the problem is that the arbitrary legislative boundaries seldom contain sufficient penalties to dissuade a politician from breaking them if it suits their political goals.

I'm going to digress a little bit into Harper's attempts to legislate changes to the Senate, in part because I want to review the legislation proposed as well as the history of those bills:

The first attempt to legislate changes in the Senate came at the end of 2006, with the government tabling Bill C-43, with a sister bill in the Senate, Bill S-4.  It got partway through the Second Reading process, but died on the table when Harper prorogued parliament for the first time in September, 2007.

An all but identical bill was then tabled by the Harper Government in November 2007 as Bill C-20, with a sister Bill C-19.  So, what happened to Bill C-20?  Good question.  It was referred to committee in advance of second reading in March of 2008, and was discussed in committee through to June of 2008.  It died on the order table when Harper called a snap election in September 2008.

During the 40th Parliament (elected in October 2008), the government tabled Bills S-7 and C-10.  Neither of these bills progressed beyond first reading before Harper's government fell on a non-confidence vote in March 2011.

Since winning a majority in the 2011 election, Harper has not pursued the matter of Senate reform via legislation, although the Conservative Party has repeatedly argued that the failure to reform the Senate rests on the opposition parties' shoulders "because they wouldn't let the legislation pass".  The lack of action on this front by Harper since winning a majority makes me believe that he was using the prior legislation while he had a minority government as a political club, rather than as part of an agenda of actually trying to make meaningful changes.

The legislation that Harper had put forward in the 39th and 40th parliaments attempted to enact two kinds of changes.  First, Bills C-20 and C-43 attempted to enact an electoral process for the selection of Senators.  Their sister bills attempted to create a regime where Senators could only sit for a maximum of eight years.  The obvious problem with the electoral process is that there was absolutely nothing in the legislation which bound either the Prime Minister or the Governor General in terms of actually appointing from the list of "selected" candidates.  In other words, at the end of the day, the choice for those appointments remains firmly in the hands of the Prime Minister and if the sitting Prime Minister doesn't like any of the candidates chosen by the electorate, well, there's nothing stopping them from ignoring the list entirely.  A weakness that renders the entire process of "electing" a senator as meaningful as Harper's "fixed election dates" law.

The term limits bills attempted to amend the Constitution Acts directly.  While not necessarily invalid, it starts to walk a very fine line, especially where the division of powers between federal and provincial responsibilities is concerned.

Section 44 of the Constitution states:

44. Subject to sections 41 and 42, Parliament may exclusively make laws amend- ing the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons. 

However, because it refers back to sections 41 and 42, any such amendment appears to be subject to provincial consent before it would come into force.

In other words, ultimately, any substantive changes to the Senate and its operations ultimately has to be reflected in the Constitution Act, and is subject to the amending formula described therein.

Harper's approach has been to dance around the issue of actually amending the Constitution presumably because he doesn't believe that he can build a coalition of agreement with the provinces.  The net result has been a legislative approach which is at best window dressing.

Personally, I have no objection to the Senate as a legislative body.  In fact, I believe that it can serve a very valuable purpose in our government.  That said, it is going to take leadership and courage for any political leader to be willing to open the door to actually making material change to the Senate.  Brian Mulroney tried to make amendments to the Constitution and failed miserably because of the flaws seen in his proposals.  I imagine that it would be all the more difficult to amend the Constitution with respect to the Senate simply because there are many different views of what could be done.

As Harper has demonstrated, legislative window dressing is meaningless unless there are significant consequences for the politician who chooses to violate them.