Worth repeating on the Supreme Court Senate ruling

As those of you who follow politics in Canada know, the Supreme Court of Canada told Stephen Harper on Friday that if he wanted to either reform (7 provinces/50% of pop) or abolish (unanimity + Senate agreement) the Senate, he needed to do something he hates doing – build a consensus with the provinces.

That ruling led him to petulantly declare that any meaningful reform or thoughts of abolition of the Senate was dead, and that the SCOC had ruled in favour of the status quo that no one wanted.

That led Athlia Raj, who is a correspondent at Huffington Post Canada, to say a series of tweets on Twitter disagreeing with Harper, and it bears repeating, because I believe it to be true:

Ok. I call bullshit on this PM statement. The #SCC did not rule in favour of the status quo..The SCC just said if you want Senate reform, this is the formula to change the Constitution…If PMSH doesn’t want to reform the Senate, it’s because he doesn’t want to engage the provinces. Not b/c the top court said no to reform.

She starts that series of tweets here… and you can follow along the chain in Twitter for the rest. Harper has always hated to compromise or to try to be a consensus builder; he prefers to go it alone and ram his beliefs on others who don’t agree, so it’s no surprise that he’d react in this manner.

Pierre Trudeau he is not.

 

 

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So this thing happened in the Senate today..

If anyone predicted this was going to happen today, I’m going to them to ask what numbers I should pick for the lottery:

Justin Trudeau has expelled from his caucus every single Liberal member of the upper house and has declared there is no longer any such thing as a Liberal Senator. The Liberal leader said the former members of the Liberal Senate caucus will sit as Independents, and they will have no formal ties to the Liberal parliamentary machinery apart from through their friendships…The move stunned both Liberal senators and senior Liberal Senate staffers, who had not been formally advised of the decision. It also blindsided veteran insiders and political observers who had no inkling about the change.

JT has proposed that if he were to form government, an independent panel would be formed to pick Senators independent of political affiliation. This also of course could be done without re-opening the Constitution, which would be required for reforms or for abolition (though the LPC doesn’t endorse that).

Its a bold move – bolder then anything Harper has ever done in eight years pontificating on the topic. I suspect it will go over well with the populace.

For myself, personally, I remain a more radical reformer; I prefer the Senate to be reformed to be an elected body, but in the interim, an independent body to pick independent Senators I can live with..at least until the Supreme Court referral comes out to let us know what we can and can`t do, and what approval levels are needed.

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Apparently, the courts are the new enemy of Senate reform

So says the Prime Minister to his party faithful at their Calgary convention:

“We were blocked by the other parties in the minority parliaments, and now we are being blocked in the courts,” said Harper in a lengthy keynote speech to the Conservative party faithful Friday night….Harper’s designating “the courts” as an enemy appeared to stem from a decision last week by the Quebec Court of Appeal, which ruled reforms such as elections to select senators or term limits could not be legislated unilaterally — as Harper had proposed.

In essence, anyone or any group that tells Stephen Harper he can’t do anything he wants is now the enemy of him and Canada. It wasn’t exactly a contrite speech. I don’t exactly see the point in trying to whip up the party faithful against the judicial system, unless it’s an attempt to make any contrary ruling seem illegitimate – rather ironic, since Harper and his party sent the Senate reform/abolition question to the Supreme Court for reference, asking what the constitutional and legal boundaries are for reform or abolition.

This surely can’t be an attempt to intimidate the Supreme Court into giving him a reference more favourable to his government’s interpretation of what the government can or cant do with the Senate, can it?

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Referendum on Senate? Only if it includes all options – including a “reform” one

Michael Bliss, Professor at U of T, argues in the Globe today that the Senate must be abolished, and lays out why it can’t be reformed.

I’ll put aside that part of the argument for now; what I’m interested in is how he feels abolishing the Senate would be any easier then reforming it as an elected body. He argues that it should be put to a vote in a national referendum, and if the consenus is to abolish – dare the provinces who oppose abolishing it to stand against a referendum vote. He doesn’t think they will, they’d be shamed into supporting abolition or be afraid of the electoral consequences if they defied it.

That seems rather presumptuous to assume on his part that provinces are just automatically going to bend to a non-binding referendum vote, regardless of its outcome. What if Maritimers in their region vote no to abolishing the Senate? Would Maritime Premiers automatically tell them the rest of Canada voted yes, so we have to ignore your vote? That would be electoral suicide for them potentially… not so cut and dried as Professor Bliss assumes, I submit.

I’m also leery of putting issues like this to referenda – an old Reform Party populist plank. I can think of a lot of important progressive reforms (end of slavery, etc) that would have been a lot longer in coming to our society if we had put them to referenda at the time they were first being discussed, rather then just through legislation as they were.

Still, I could theoretically support a referendum – as long it has a “reform” option to vote on it, not just a straight “yes or no – keep it or get rid of it”. A couple of current polls show a plurality of Canadians prefer reform to abolition – reform meaning “elected” – so I think just putting a yes – keep it, no – get rid of it question out there does a disservice to those of us who want elected reform to the Senate.

Speaking of Michael Bliss’s presumptions on bending to the will of the people, if a “reform” option is included on a theoretical referendum ballot, and a plurality or majority of voters pick that as the preferred option, under Bliss’s theory, the NDP, Liberals, Conservatives and provinces should also bow to the will of the people. Will that happen? I’ve my doubts, but if my friends on the NDP would like to jump in and comment and affirm that yes, in their case, they’d automatically drop their abolition plank and bow to the elected reform will of the people if that scenario were to occur, feel free. (I specifically mentioned them because its mostly NDP supporters who are linking on Facebook or retweeting this article approvingly this morning, but if any of my provincial friends in Ontario at Queens Park would like to comment on their willingness to follow a referendum result on this, by all means, go nuts)

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Plurality of Canadians want Senate “reformed”, not abolished.

At least, according to this Nanos poll:

The survey asked Canadians what they would like to see done with the Senate. Respondents were overwhelmingly against the status quo, with 49 per cent supporting reform of the Senate and 41 per cent preferring it be abolished. Just six per cent said leave it as is, while four per cent were unsure.

The random survey of 1,000 Canadians was conducted between June 8 and 11..Participants in the survey were randomly recruited by telephone and administered a survey online. The margin of error for a random survey of 1,000 Canadians is plus or minus 3.1 percentage points, 19 times out of 20.

That says 2 things:

1) The NDP position of abolition is not in the majority (at least, not in this poll)

2) Leaving as is isn’t acceptable either – and I hope Justin Trudeau and the LPC take note. Saying you’d prefer to reform it by appointing higher-quality people isn’t going to cut it, I’m afraid.

 

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One less provincial vote for Senate abolition

Premier Kathleen Wynne is taking the opposite position of what Dalton Mcguinty advocated: instead of abolition, she is for reform of the Senate:

Kathleen Wynne, says she sees real value in having a chamber of sober, second thought and would like to see it reformed. Wynne says the discussions of just how to reform the Senate is something she would like to have with the other provincial premiers.

It is a big blow to those who wish to kill the Senate – regardless of whether it takes 7 provinces with 50 % of the population, or unanimous consent (that issue has been referred to the Supreme Court by Harper, as to which formula is needed to abolish the Senate). If Ontario is not on-board with abolition, even 7/50 is hard, if not impossible to obtain.

Now, Premier Wynne didn’t specifically say an “elected Senate”, was what she’d like to see for reform which is what everyone automatically assumes when one says you’re for reform of the Senate, but this statement is a start.

 

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On Senate Reform

Your latest poll from Forum Research on what should be done with the Senate:

“More than one third want to abolish the Senate. An additional 37% called for the Senate to become an elected body. Less than 10% felt it best to leave the Senate as is. The latest results are consistent with an earlier Forum poll on the Senate, which was conducted before the scandal gained traction. Those February results also show the majority split between abolition and reform.”

I’m in the electoral reform camp, as you may know from reading here. Consequently, I disagree with Justin Trudeau that the only thing needed to improve the Senate is to pick better people. Even if he were elected and picked “better people”, that leaves abuse open for the next Harper, or Mulroney , or even future Liberal leader.

I get what Justin is saying (which he is taking some heat for) that you can’t make the Senate elected without addressing the seat disparities, and I certainly agree with him that you can’t change the Senate in any shape or form without consulting the provinces, but that’s no reason to leave it unelected and basically unchanged from its current format.

The sentiment on the Senate from the electorate  is not with him or the LPC on this, and I hope he and the LPC will reconsider his stance before 2015.

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Yet another Senate reform blogpost

Ideas to reform the Senate seem to be the Canadian version of the Holy Grail. This week, you’ve seen not calls for reform, but calls to abolish it with the behaviors coming to light  of a couple of Harper-appointed Conservative Senators in the form of Mike Duffy and Patrick Brazeau.

I’m against abolition – I think the Senate can perform its constitutionally designated role – representing the provinces/regions equally (edit: and acting as a chamber of sober second thought), if it was given some legitimacy and the patronage appointment power of the Prime Minister (or technically the Governor-General) removed. Of course, that means I’m for electing the Senators, but you can’t do it piecemeal like Harper is trying to do. It has to be done legally and constitutionally. I think the Supreme Court reference will point that out.

Some of you might say that an elected Senate might cause gridlock.. such as we see in the US, particularly if opposing parties control each chamber.  Well, my proposal would prevent that. It’s a modification of what the Australian Parliament does. In brief, (and I hope I’m being accurate here) a bill that is passed in the Lower House can be rejected (in its original form) in the Australian Senate and sent back with proposed modifications. The Lower House will either agree to those amendments (passing them, sending it back to the Senate where it presumably would be approved without trouble), or reject them, sending the Bill back in its unaltered form,  or they may perhaps counter-propose their own set of amendments to the Bill, and send it back to the Senate.. That can happen up to  3 times in a legislative sitting- passing the bill back and forth.

If they are still deadlocked, what happens is their Governor-General declares a double-dissolution, new elections are held for both Houses, and when the Parliament reconvenes after the election , there is an immediate joint Senate/Lower House vote on the Bill in question – first on any proposed amendments, and then if those modifications are rejected,  on the original bill passed by the Lower House before dissolution. The combined vote’s outcome- Yay or Nay on both the amendments and the original bill is the final vote on it, and the Bill will either get passed and signed into Royal Assent/Law (with or without amendment(s), or it fails.

My proposal would copy this to the letter – with one caveat.. I would not have the double dissolution provision in there, because in this political climate, there is too much partisanship  – so much so that several bills in a row might face the triple modification/rejection scenario., and Canadians certainly wouldn’t want elections every other month.

I would thus propose that a Bill that is passed by the elected House of Commons can be sent back with amendments up to 3 times by the elected Senate. If the 2 chambers still cannot agree, the G-G will call a joint sitting of Parliament, and the Bill will be voted on with amendments and if necessary in original passed form and given a joint Yay or Nay vote by both Senators and MP’s.

In this format, the H of C, which has more of the members should in theory be able to pass legislation that they want, if they have a majority in that chamber… but if the numbers are close, they would also have to recognize the risk of it failing and be open to compromise.

The Senate, with its responsibility for protecting regions/provinces, would be given legitimacy by election of Senators, and would be performing its constitutional role of “Sober Second Thought”, without causing endless delay or obstruction to bills.

That’s what I would do. Not that it matters, since Senate Reform as I said is the Holy Grail of Politics, but I’ve always thought this is the best way to reform the Senate and make it legitimate, but keep the House of Commons as the more or less predominant part of Parliament (minority House of Common  governments would be very interesting in this scenario too for passing legislation).

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Good move by the Conservatives (no this title is not a typo) on Senate Reform

Yes, I’m going to give Harper credit on something this morning, and that is the apparent decision to refer the Government’s proposed Senate reform bill to the Supreme Court of Canada, and ask the High Court for their decision on whether its constitutionally valid or not:

Since 2006, the Conservative government has called for all new senators to be selected through provincial elections and to serve under a fixed term, with the latest version of the legislation proposing a nine-year mandate…experts said they feel it is appropriate to check on the constitutionality of the Senate reforms before they are put into place, instead of passing the legislation and then letting a province go to its court of appeal to challenge their validity.

This is a rare instance where the Conservative government has decided to not ram something through and actually get some consultation on this. Now, the article says that’s probably partly due to the fact that some of the Senators Harper has appointed oppose the fixed-term limits in his proposed bill, which may have forced his hand (would look rather embarrassing if his own caucus in the Senate were the ones who would be killing the Senate Reform bill), but I’ll overlook that for now.

It’ll be interesting to see the proceedings on this, i.e. whether outside parties (such as the provincial governments) are able to obtain intervenor status to present their point of view to the Supreme Court on the government’s proposed Senate reform bill. Also, it’ll be interesting to see if the court were to rule all of or parts of the bill were not constitutional and Senate reform needed to be done the “proper’ way as the Constitution spells out, whether Harper would actually try to go that route or if he would declare Senate reform “dead” and ditch the whole idea.

UPDATE @ 3:22 pm: In a news release earlier this AM, Stephane Dion of the Liberals notes that Liberal Senators recommended in 2007 that the Conservative government take the referral route, but it was rejected at the time. He notes correctly if the Conservatives had taken their advice, they wouldn’t have wasted 5 years on this file.

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Poll: majority of Canadians support constitutional talks to reform Senate

It seems a new poll is out that says Canadians are more then willing right now to re-open the Constitution to do such things as Senate reform:

After almost two decades of constitutional peace, Harris-Decima survey conducted for The Canadian Press indicates a majority is now willing to risk re-opening the constitutional can of worms to accomplish some specific goals…For instance, 61 per cent said they’re prepared to re-open the Constitution to reform or abolish the appointed Senate. And 58 per cent said they’re willing to offer constitutional amendments in a bid to finally secure Quebec’s signature on the Constitution. Fifty-eight per cent also said they’re willing to open up the Constitution to change the country’s electoral system.

Those are pretty solid majorities willing to open up constitutional talks and address those issues. It’s only one poll from one polling firm, of course, but if Harper was afraid that re-opening the Constitution would cost him political capital, initial polling doesn’t seem to show it. There are a couple of other possibilities of course: Harper really isn’t that serious about Senate reform, or he fears opening the constitution because of the possibility talks will fail. As I’ve said before, bold leaders who are sincere in their beliefs take those chances. Pierre Trudeau was willing to try several times before he succeeded in 1982. Mulroney tried twice and failed, but at least was willing to walk the walk. Harper so far has talked a good talk about Senate reform, but his actions (appointing defeated candidates to the Senate) speak louder then his words on this issue.

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