Tag Archives: Senate reform

In the policy-maker sweepstakes, the Supremes win


It’s bad enough for a sitting government with an entire justice department at its disposal to be judged broadly inept on matters of law. But to be found so wanting by one of the country’s leading conservative think tanks?

Gadzooks! Et tu, Brute?

But there it was last week for all to witness: The Macdonald-Laurier Institute’s 2014 pick for policy-maker of the year.

The winner was (cue drum roll) the Supreme Court of Canada. The reason was (cue kazoo) it managed to wipe its hallowed chambers with government lawyers 70 per cent of the time in big, landmark cases.

Allow into evidence, if you will, item #1: The federal Tories wanted an elected Senate and thought they could push a form of one through legislative channels without opening up the Constitution and all that pesky inter-provincial wrangling that is, in fact, the very essence of Confederation.

The Supremes’ response: “Sorry, fellas, it’s not gonna happen on our watch.”

This almost dismissive “now-off-you-go-and-play-nice-for-a-change” routine transpired seven times in 10 Supreme Court considerations of government cases. Apart from the Senate decision, these included key matters involving aboriginal title and land claims, prostitution, the appointment of Supreme Court justices from Quebec, cybercrime, truth in sentencing, and retrospective repeal of accelerated parole review.

For Benjamin Perrin – an Associate Professor at the University of British Columbia, Faculty of Law and a Senior Fellow at the Macdonald-Laurier Institute – who who picked this year’s top policy-maker, the decision was a no-brainer:

“The policy and legal impact of the Supreme Court of Canada’s decisions of the last year are significant and likely enduring; the Supreme Court of Canada was a remarkably united institution with consensus decisions on these significant cases being the norm, and dissenting opinions rare; and the federal government indeed has an abysmal record of losses on significant cases, with a clear win in just one in 10 of them.”

What’s more, if there had been a concerted effort to stack the court with justices who could be counted upon to tow the Conservative Party line, that effort seems to have failed miserably. “(Mr. Perrin’s) analysis showed that the court reached a consensus decision in 80 per cent of these cases – higher than the average over the past decade,” a Macdonald-Laurier press release stated.

Added Mr. Perrin, himself: “There is no evidence whatsoever of any observable split in the Court’s decisions on significant issues between the six judges appointed by Prime Minister Harper and the three judges appointed by previous prime ministers.”

Make no mistake, these are no trifling matters. Mr. Perrin correctly observes that 2014 hosted a disproportionate number of landmark cases. The government’s losing streak effectively handed the keys to the castle to the judicial branch.

“In its decisions on significant constitutional matters in the last year, the Supreme Court of Canada has made bold decisions that fundamentally affect the way Canadian Democracy functions,” he writes.

Furthermore, he concludes, “The most significant and enduring impact of the Supreme Court of Canada in the last year will be its interpretation of the amending procedures in the Constitution Act, 1982, in its reference decisions related to Senate reform and the appointment of judges to the high court from Quebec. Taken together, these decisions entrench the Senate and Supreme Court of Canada as institutions that are virtually untouchable. Changing the composition of either institution has been determined to require the unanimous approval of the House of Commons and the Senate as well as every provincial legislature.”

So, then what happened in 2014?

Did the government know the law well enough before it argued its cases before the court? Or, did justice lawyers feel that discretion was the better part valor (or, at least, their own job security) before politely suggesting that their political masters were out to lunch on one or more points of precedent?

In any case, Mr. Perrin thinks a post-mortem is in order. “Until this is exhaustively done, it would be premature, as some commentators have suggested, to conclude that there is a fundamental rift in values between the federal government and the Court.”

Maybe, but from where this commentator stands, it sure looks that way.

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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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The Red Chamber’s not so red anymore


In question period on Wednesday, Liberal Leader Justin Trudeau needn’t have uttered a word; the self-satisfied and supremely amused look on his face spoke volumes. It was the sort of expression one adopts when one has eaten somebody else’s lunch and gotten away with it.

The lunch, in this case, was Prime Minister Stephen Harper’s who has been dancing around the complex and thorny issue of Senate reform for years; one tends to forget that overhauling the Red Chamber, making it more representative and democratic, was a signature plank in the Tory leader’s campaign for federal office.

But it was Mr. Trudeau who pounced, instead.

“As of this morning,” he said in a statement, “only elected Members of the House of Commons will serve as members of the Liberal Caucus. The 32 formerly Liberal Senators are now independent of the national Liberal Caucus. They are no longer part of our parliamentary team. . . .Let me be clear, the only way to be a part of the Liberal caucus is to be put there by the voters of Canada.”

Furthermore, he said, “I challenge the Prime Minster to match this action. As the majority party in the Senate, immediate and comprehensive change is in Conservative hands. I’m calling on the Prime Minister to do the right thing. To join us in making Senators independent of political parties and end partisanship in the Senate.”

Later, speaking with the CBC’s Peter Mansbridge, he said his timing had nothing to do with an auditor-general’s investigation of Senate expenses, which could embarrass some federal Liberals, calling that a “separate problem from the excessive partisanship and patronage. . .which is what I have moved to eliminate today. . . It’s never the wrong time to do the right thing.”

All of which left Ottawa reeling, including Grit senators.

“We are the Senate Liberal caucus and I will remain the leader of the opposition and we will remain the official opposition in the Senate,” the former Liberal Leader of the  Senate James Cowan said.

“I’m still and Liberal senator, not an independent,” Senator Mobina Jaffer piped up. “I’ve always been a Liberal.”

Meanwhile New Brunswick Senator Pierrette Ringuette called the move surprising, but not shocking, and a “giant step in the right direction. . .If we want to reform the Senate, senators need to be independent of groups and parties, and that’s what the leader has done today.”

In fact, with this move, the leader has done quite a few things.

For one, he’s grabbed the initiative and stamped the future of Senate reform with the Liberal brand. Even if the momentum shifts back to the Tories, they can never again claim that they lead the charge.

Paul Poilievre, the Minister for Democratic Reform, questions the wisdom of freeing unelected senators from the influence and control of elected Members of Parliament (specifically, the prime minister and opposition leaders).That, however, is a point of process; how, exactly, the selection process will work is not yet clear.

What is clear is widespread, even overwhelming, public support for dramatic Senate reform, without which most Canadians would rather bid the institution a long overdue fare-thee-well.

Mr. Trudeau’s initiative, they will say, may not be perfect. In the long run, it may not even be workable. But at least he’s doing something. And that, alone, stands him head and shoulders above the rest on the Hill.

The move has also upended the Prime Minister’s Office’s strategy of keeping the Senate, with all of its attendant scandals, out of the news as much as possible. According to polls, the Mike Duffy-Nigel Wright affair has seriously damaged the government’s credibility.

“What the Liberal Party doesn’t understand is that Canadians are not looking for a better unelected Senate,” Mr. Harper told the House of Commons.  “Canadians believe that for the Senate to be meaningful in the 21st century it must be elected. . .I gather the change announced by the Liberal Leader today is that unelected Liberal senators will become unelected senators who happen to be Liberal.”

It was a good line. It’s too bad lunch was over when he delivered it.

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