“We have heard from Canadians loud and clear. They want us to continue our efforts. They are asking us to accelerate those efforts. The Senate status quo is not acceptable,” Mr. Harper said.
To raise the prospect of Senate abolition in response to an expenses scandal that threatens his own office, however, suggests the goal was to distract an angry public with a proposal guaranteed never to come true, experts say.
“He knows that the abolition of the Senate is not possible,” said Errol Mendes, editor-in-chief of the National Journal of Constitutional Law. “You have to ask what’s the agenda there. He’s probably the most brilliant tactician and strategist Canada has seen. So what’s the strategy? I’m starting to wonder whether he knew from the very outset that all these plans [for reform or abolition] would be a no go.”
Long a key plank of the Tory platform, the federal government first asked the Supreme Court this year for guidance on Senate reform. The questions, for which oral arguments will be held this year, include whether Parliament on its own can impose elections and term limits on senators, or abolish the chamber altogether.
“They can keep pushing it. It’s sort of like pushing for virginity in a summer camp,” said Ned Franks, a constitutional expert at Queen’s University.
“So many of the proposed reforms are simply buzzwords that haven’t been examined,” Prof. Franks said. Senate elections, for example, sound reasonable, he said, until you realize that Quebec and the Maritime provinces have nearly a majority in the Senate, but a quarter of the population. “That doesn’t make sense.”
Any movement toward abolition “would become very quickly part of a larger constitutional reform package, and that would ultimately lead into the decay and destruction of recent efforts to reform the constitution,” Prof. Franks said. “They just are not profitable. You wind up pitting group against group.”
“This expense scandal has nothing to do with Senate reform,” said Emmett Macfarlane, assistant professor of political science at the University of Waterloo. Mr. Harper’s mention of abolition was a distraction, he said, “part of a rhetorical appeal to dodge away from the real issue.”
The question before the Supreme Court on abolition is the clearest of all, he said, because major constitutional changes clearly require unanimous consent of the provinces. There is a “fanciful” theory, however, that it would only take seven provinces, representing 50% of the population, to gut the Senate of its powers and leave it as a kind of “vestigial organ that does nothing,” he said, like the parliamentary appendix.
The Supreme Court is likely to clarify which standard must be met, but both are almost practically impossible, and the path forward is fraught with electoral peril, Prof. Mendes said.
“Even if [Mr. Harper's Senate reform] proposals were upheld by Supreme Court, and he can push them through with his majority government before the term ends, it would hugely penalize the West, his base. It would entrench the under-representation of Alberta, British Columbia, Saskatchewan forever,” said Prof. Mendes, who teaches constitutional and international law at University of Ottawa. “I’m surprised the West hasn’t screamed.”
On the other hand, if the Supreme Court decides elections and term limits are unconstitutional, then Mr. Harper “has free reign, if he wins next election, to fill the entire Senate with bagmen, fundraisers, etc., and the play goes on,” Prof. Mendes said.
Abolition will be “at minimum extraordinarily difficult,” said Craig Scott, NDP critic for democratic reform. “Then the question becomes: When do massive changes occur in society? They occur when there is a historic moment when not just elites are ready for it, but the people are ready for it. And I think on this one, if we have a popular threshold that’s been crossed, where average Canadians are just so fed up, they’ve begun to understand that these ethical scandals are not just about individual ethics, but about, let’s call it, structures in culture related to the Senate. Then all of those things can come together and we’d have something resembling a social movement, or at least a social consensus. Without that, it would be almost impossible to abolish.”
“I think Canadians are getting there,” he said.
“The nature of a constitution is to resist change. That is what constitutions do,” said Anne Cools, the longest-serving current senator, who sits as an Independent from Ontario after previously being both Liberal and Conservative.
“The Constitution of Canada has lasted for 150 years and that is one of the reasons, that those individuals who framed that constitution intended that it would be very difficult to amend, for very good reasons,” said Ms. Cools, who has been granted intervenor status at the Supreme Court on the reference.
Describing the arguments she will bring to the court, she said it is “unthinkable” to contemplate a modern federal country without an upper chamber, and that tampering with the Senate is tampering with Canada.
“There can be no federal system without a senate,” she said. “Remember, the federation is embodied not in the House of Commons. The federation is embodied in the Senate, because of the nature of the representation. … It’s a point that’s been overlooked.”
“Every time one opens up the constitution, one is in danger of opening up the very same problems that existed when the constitution was created,” she said. “There’s a little part of me that thinks that any connection of abolition of the Senate to any errant behaviour, or apparently errant behaviour, by any senators, is not entirely politic, not entirely prudent… These things are not as simple as people are making them out to be.”
“We can’t at this point get rid of the Senate. We just can’t,” agreed Prof. Franks. “So if you’re going to live with it, you should look at trying to make sure good people are brought into it and are given the chance to do useful work.”
Original Article
Source: nationalpost.com
Author: Joseph Brean
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