Attention to shift to Supreme Court

Published Nov. 11, 2013, in The Waterloo Regional Record.

Prime Minister Stephen Harper is back in control, sort of.

The Senate has been put back in its place. The three wayward Conservatives, Duffy, Wallin and Brazeau, who went out of their way to make life miserable for the PM, have been cast into outer darkness, their paycheques terminated (but, oddly, not their health or life insurance nor, it seems, their pensions). The clumsy coverup concocted by the prime minister and his staff has been swept into a black hole reserved for fables that no intelligent person would buy.

With the Commons off for its weeklong Remembrance Day recess, attention will shift to the Supreme Court of Canada, which has set aside three days this week to hear lawyers argue the nitty-gritty of the Harper government’s constitutional reference on Senate reform. The court’s task will be complicated less by the pyrotechnics on Parliament Hill than by the inexactitude of the reference itself.

After roughly two decades of hemming and hawing, the Harper party still doesn’t know what it wants to do with the Senate or what role, if any, it wants the upper house to play in the life of the country. Back in its Reform days, the party thought it wanted a serious upper house, elected and effective. As the prospect of attaining office increased, however, the Conservatives, as they had become, lost their ardour for a real Senate on the U.S. model. Why share power with a second house?

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After forming the government in 2006, they did introduce bills to tweak the Senate, but never made a serious effort to pass them. At first, they blamed opposition obstruction. These days they are blaming the courts for thwarting reform — this without even waiting for the Supremes to hear arguments this week.

The reference invites the court to choose from a smorgasbord of options: from outright abolition of the Senate (which appears to be Harper’s new default position); to retaining the red chamber but eliminating its powers; to limiting the terms of members to eight years or to nine years or to 10 years or more (take your pick); to authorizing federal and/or provincial referendums to nominate senators; to repealing the requirement that senators own $4,000 in “real property” in the province they represent.

But (Mike Duffy and Pam Wallin take note) there is no mention of the thorny issue of residency: are senators required to actually live in the province they represent, or it is good enough to own a second residence there? The Supreme Court is not being asked that.

It is being asked about amendment procedures. Abolition of the upper house would likely need unanimous consent among the provinces. Lesser changes might require use of the 7/50 formula (seven provinces with 50 per cent of the population). A relatively minor reform (such as term limits) might be accomplished by Act of Parliament alone.

The Supreme Court hearings may divert attention from the expenses scandal, but the respite will be temporary for the government. The RCMP is still investigating the expense claims of the trio of Tory senators, plus newly retired Liberal Mac Harb. The auditor general is reviewing the expenses of all senators. And Duffy and Wallin have lawyers primed to fight their suspensions in court.

More important, crucial questions will still be waiting for Harper when Parliament resumes in a week’s time, and Opposition Leader Thomas Mulcair will be there to ask them.

Why did the Prime Minister’s Office tell Duffy it was OK to claim his P.E.I. cottage as his principal residence when everyone knew he had lived in Ottawa for years? Why did the prime minister assure Parliament that he had seen Pam Wallin’s expenses and they were consistent with other senators’? Why was Nigel Wright unceremoniously downgraded from Loyal Lieutenant to Great Deceiver?

Finally, what did Harper himself know and when did he know it? As I have noted before, this is not Watergate, but it has a similar smell.

Proroguing Parliament

As you can tell, I’ve been reading Peter Aucoin et al’s book, Democratizing the Constitution, over the summer and have really enjoyed it.  Like any good book, it provokes important discussion and debate.

One of the strengths of the book is its analysis of prorogation, a most welcome and timely analysis given the events in Canada over the last four years.

On page 224, they write:

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“several prime ministers, in both minority and majority situations, have taken advantage of the prerogative power to prorogue the House of Commons in order to escape its scrutiny. To address this problem, we propose that prorogations of the House of Commons happen only with the consent of the House of Commons and, specifically, with the support of a supermajority of two-thirds of members. The supermajority is necessary to project the ability of the House to effectively scrutinize majority government even when it might be embarrassing or damaging to the government, because a simple majority threshold that would be effective during a minority government could be met with support from the governing party caucus alone.”

I think it’s worth considering giving Parliament an enhanced role in determining when a government can prorogue Parliament.  However, I’m not convinced that a prorogation vote should require a two-thirds majority vote in the House. If a non-confidence vote (and every other vote in the House) requires 50%+1 to be successful, then it seems logical that the same rule should apply to prorogation votes.

Still, the ideas in the book about prorogation are valuable contributions to public debate and should be read widely and discussed.