Canada’s feuding, fuming democracy 



That there is no love lost between Canada’s top jurists and its prime minister became brilliantly obvious last week when the Supreme Court of Canada squashed the federal Tories’ fondly held Senate reform ambitions.

Less obvious was whether the executive and judicial branches of government in this country will ever find common ground on any issue of substance that’s dear to a true, blue Harperite heart. 

Senate reform was the fifth, straight juridical mauling of the Conservatives in recent months, and, like all the others, the outcome was hardly surprising. In its ruling, the court was unequivocal about the limits of legislative meddling.    

“The framers sought to endow the Senate with independence from the electoral process to which members of the House of Commons were subject, to remove Senators from a partisan political arena that required unremitting consideration of short-term political objectives,” it declared (as quoted by the Globe and Mail). “The provinces must have a say in constitutional changes that engage their interests.”

To the federal government’s contention that the nation badly needs a more accountable, more transparent Senate whose newly elected members must serve short sprints – rather than lifelong marathons – in office, the Supremes responded that “the purpose of the (government) bills is clear: to bring about a Senate with a popular mandate. . .Legal analysis of the constitutional nature and effects of proposed legislation cannot be premised on the assumption that the legislation will fail to bring about the changes it seeks to achieve.”

As for the populist notion of abolition (enthusiastically endorsed by the NDP and others), it would  “fundamentally alter our constitutional architecture – by removing the bicameral form of government that gives shape to the Constitution Act, 1867. (Abolition) requires the unanimous consent of the Senate, the House of Commons, and the legislative assemblies of all Canadian provinces.”

With that, Prime Minister Stephen Harper bid farewell, once and for all, to a cherished plank of his policy platform. “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,” he said following the court’s announcement. “I think it’s a decision that the vast majority of Canadians will be very disappointed with, but obviously we will respect that decision.” 

In fact, despite their rhetoric and table pounding, the Tories never really formulated a clear idea about how to reform the Senate without dismantling the constitutional protections of a sizable number of Canadians. Every notion it floated was predicated on the faulty and profoundly self-important assumption that worthwhile changes to the institution did not require much, if any, consultation with the provinces.

The arrogance of that central conceit – that under Stephen Harper, the executive can conduct itself as it sees fit without recourse to any other branch of government – evidently rubbed the court the wrong way, as it has in four other cases since late March. 

When Peter MacKay, minister of justice, barred first-time, non-violent federal convict from obtaining early parole, the court ruled unanimously on March 20 to reverse the decision. 

One day later, the Globe reports, “Prime Minister Stephen Harper appointed Justice Marc Nadon to the court, to fill a Quebec vacancy. The question was whether, as a judge on the Federal Court of Appeal, he was eligible to represent Quebec. (The Supreme Court ruled 6-1) that he was ineligible because he did not have the special qualifications required for Quebec judges on the Supreme Court.”

Meanwhile, as the Globe chronicles, “Under the Truth in Sentencing Act, the government tried to stop judges from routinely giving extra credit to offenders for the time they serve in custody before sentencing. (The court ruled) 7-0 that judges have discretion under the act to routinely give 1.5 days credit for every day served.”

Finally, “A prisoner wanted to challenge his transfer to a maximum-security jail from a medium-security one. The federal government said he had to go through a slow process that involved the Federal Court. (The court ruled) 8-0 that prisoners’ ancient right to habeas corpus gives them prompt access to superior courts in whatever province they are in.”

Of course, amity between branches of government is not a prerequisite for maintaining a hale and hardy democracy (just the opposite, one could argue). 

If that’s true, then Canada’s successful union is the very picture of health.


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