“These shenanigans by Harper are what he does best, which is divide and conquer,” Prof. Mendes told The Hill Times following the government’s surprise announcement on Friday it was asking the Supreme Court whether Parliament has the constitutional power to unilaterally make changes to Senators’ term limits and election.
Democratic Reform Minister of State Tim Uppal (Edmonton-Sherwood Park, Alta.) announced late Friday Feb. 1 that the government referred six questions to the Supreme Court of Canada regarding Senate reforms. There are also two questions on how the Senate can be abolished and whether the government can repeal net worth and property qualifications. Currently Senators must own $4,000 of land in the province in which they are appointed.
“Our government believes that the Senate must change in order to reach its full potential as a democratic institution serving Canadians,” Mr. Uppal said. “The Harper government received a strong mandate to pursue Senate reform and today we are taking action to further our goal of a more democratic, effective and representative Senate.”
Bill C-7 is the government’s eighth Senate reform bill introduced since the Conservatives were elected in 2006. It was introduced on Sept. 30, 2011 and debated seven times, the last time on Feb. 27, 2012. The government has consistently said that it is within its power to make the changes under section 44 of the constitution rather than opening up constitutional talks with provinces.
Section 42 of the Constitution of Canada Act 1982 says seven of the 10 provinces with more than 50 per cent of the country’s population would have to agree to any changes to the powers of the Senate and the method of selecting Senators—who now are appointed by Cabinet with approval from the Governor General on behalf of the Queen. Section 44 of the Constitution of Canada Act 1982 states Parliament may make laws amending the constitution in relation to “the executive government of Canada or the Senate and the House of Commons”—subject to the section 42 requirement for majority provincial agreement on selection of Senators and the Senate’s powers, and another section requiring unanimous agreement from the provinces in other key areas.
Conservative Senator Claude Carignan (Quebec) at the same press conference on Feb. 1 said that the Senate remains an important institution in Canada’s Parliamentary system, but that the institution should be democratized. “Canadians deserve a more democratic Senate and the Supreme Court reference will help to advance progress towards that goal,” Sen. Carignan said.
In a surprise move, the government also asked the Supreme Court if Parliament, meaning the Crown, the Commons and the Senate, could abolish the Senate using the 7/50 formula under the constitution by which seven provinces with 50 per cent or more of the Canadian population can make changes to Canada’s constitution—a constitutional amending formula set down in 1982 along with other major changes brought in by former prime minister Pierre Trudeau’s government and all provinces except Québec.
Mr. Mendes noted Senate abolition contradicts what Mr. Harper (Calgary Southwest, Alta.) once staunchly supported—an equal, elected and effective Senate to balance central Canada’s control over Parliament under a majority government—when he helped Preston Manning draft constitutional proposals for the defunct Reform Party.
Mr. Mendes said the government’s Supreme Court gambit will also create divisions in Atlantic Canada, considering the important Senate representation played when Nova Scotia and New Brunswick took part in Confederation and the founding of the new Canada in 1867 because of guaranteed Senate representation as well as a guarantee that their number of Commons seats would never be less than their number of Senate seats.
“The Atlantic provinces would go nuts,” said Mr. Mendes. “That’s why they joined confederation in the first place.”
Québec Justice Minister Bertrand St.-Arnaud and the province’s minister of intergovernmental affairs, Alexandre Cloutier, issued a statement immediately after Mr. Uppal announced the federal government’s reference of the Senate questions to the Supreme Court. Cabinet had only a few hours earlier, on Friday morning, passed an order authorizing the reference and laying out the questions it wants the Supreme Court to answer. Three Justice Department lawyers, acting for Justice Minister Rob Nicholson (Niagara Falls, Ont.) in his role as Canada’s Attorney General, filed the reference at the Supreme Court of Canada later the same day.
Under the Supreme Court of Canada Act, the court is obligated to weigh the constitutional reference from the government and respond to each of its questions. Earlier governments have asked the Supreme Court to render opinions on proposed changes to the constitution, including the 1982 patriation and conversion of the founding 1867 British North America Act into a Canadian statute that incorporated the Charter of Rights and Freedoms and constitutional amendment provisions.
When Bill C-7 was introduced, the Quebec government sought a reference to the Quebec Court of Appeal to block the federal government’s move to make the changes without provincial consultation.
“The federal government is trying to short-circuit the Quebec government by using its preponderant position in the Canadian judicial system,” said Quebec Justice Minister Bertrand St-Arnaud. “This is unacceptable.”
The former Liberal Quebec Justice minister Jean-Marc Fournier said previously, “We believe that this approach goes against the Constitution, respect for the regions and provinces and against the very foundations of federalism. It is clear so far that the federal government has shown no desire for discussion with the provinces.”
Liberal MP Stéphane Dion (Saint Laurent-Cartierville, Que.), his party’s democratic reform critic, asked about the issue during Question Period last Friday, prior to the government’s announcement for a Supreme Court reference. “The Senate reform bill, Bill C-7, is a unilateral attempt to impose on Canada a stalemate between two elected chambers in addition to terribly under-represented Alberta and British Columbia. Dangerous for Canada, the whole plan is on shaky constitutional grounds. Will the Minister of State for Democratic Reform announce today that this ill-conceived Senate reform will finally be referred to the Supreme Court, something the Liberal Party has been requesting since June 2007?”
Mr. Uppal replied: “We will take no advice and no lessons from the Liberals. That member, in the time that his party was in government, did nothing to advance Senate reform. Our government tabled the Senate Reform Act to limit the terms of senators and to give Canadians a say in who represents them in the Senate. We are committed to making the Senate more democratic, accountable and representative of Canadians.”
The government anticipates the Supreme Court will make a decision within 10 to 24 months.
Mr. Dion said Monday the government handed the hot constitutional potato off to the Supreme Court to divert attention from the fact it has done nothing in Parliament with its Senate reform proposals since last February. At the time, in House debate at the bill’s second reading, the government put up no speakers, leaving the floor to opposition MPs.
“The government wanted to hide the fact that it dragged its feet about its bill,” Mr. Dion said. “They may pretend today they are asking for a comprehensive study about the Senate, but it’s only to hide that.”
Mr. Dion agreed unanimous agreement from the provinces would be required to abolish the Senate, in part because of the effect its termination would have on elections to the House of Commons.
“Almost all constitutional experts will tell you that you need unanimity of the provinces,” he said. “P.E.I has four seats is in the House because they have four Senators. If there is no Senate in the House, P.E.I. (and other smaller provinces) may lose its protection, and so you need unanimity of the provinces, it’s a result of the 1982 Constitution Act.”
Mr. Mendes said Mr. Harper is engaged in “mischief-making” and is wasting the Supreme Court of Canada’s time forcing it to consider questions, particularly on Senate abolition, which are already clearly spelled out in the constitution.
“The other person who should be spinning in his arm chair is Preston Manning, because this is so antithetical to the triple E Senate which brought Preston Manning into politics,” Mr. Mendes said.
Questions referred to the Supreme Court regarding Senate reform:
1. Senate Term Limits
In relation to each of the following proposed limits to the tenure of Senators, is it within the legislative authority of the Parliament of Canada, acting pursuant to section 44 of the Constitution Act, 1982, to make amendments to section 29 of the 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 of ten 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);
(f) 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?
2. Senate Appointment Consultations: National Process
Is it within the legislative authority of the Parliament of Canada, acting pursuant to section 91 of the Constitution Act, 1867, or section 44 of the Constitution Act, 1982, to enact legislation that provides a means of consulting the population of 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?
3. Senate Appointment Consultations: Provincial Processes
Is it within the legislative authority of the Parliament of Canada, acting pursuant to section 91 of the Constitution Act, 1867, or section 44 of the 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?
4. Property Qualifications
Is it within the legislative authority of the Parliament of Canada acting pursuant to section 44 of the Constitution Act, 1982 to repeal subsections 23(3) and (4) of the Constitution Act, 1867 regarding property qualifications for Senators?
5. Senate Abolition
Can an amendment to the Constitution of Canada to abolish the Senate be accomplished by the general amending procedure set out in section 38 of the 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 of Canada;
(b) by amending or repealing some or all of the 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) of the Constitution Act, 1982?
6. Unanimous consent
If the general amending procedure in section 38 of the Constitution Act, 1982 is not sufficient to abolish the Senate, does the unanimous consent provision set out in section 41 of the Constitution Act, 1982 apply?
Original Article
Source: hilltimes.com
Author: Tim Naumetz
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