Thursday, October 24, 2013

See, we told you so (Senate reform edition) -- and what I'd like to see

Finally someone has told the Prime Minister he can stuff it on his brand of changes to the Senate of Canada.  It comes courtesy of the Québec Court of Appeal which has unanimously ruled Bill C-7, if passed, would be unconstitutional and therefore a form of "dead letter clause".

(The official ruling, in English is here -- courtesy The Montréal Gazette)

Stephen Harper has been so determined to "reform" (pun intended) the Senate of Canada that he has introduced unilateral legislation creating fixed nine year terms and elections only in those provinces that want it.   (Compare this, for instance, to the Beaudoin - Dobbie Committee of more than 20 years ago, to which I actually filed a brief, which recommended fixed six year terms and elections held across the country).

Harper's argument is that Section 44 of the 1982 constitutional amendment allows Parliament to pass laws that exclusively pertain to the House of Commons and the Senate.    That's fine for changes to the formula that determines representation of each province in the House of Commons (Section 51 of the original 1867 Constitution), or if the Senate decided to replace the appointed hack of a Speaker with one elected amongst its members, just as the House does after every election; or just in general any changes to the Standing Orders of Procedure in each House.

But actual changes to the nature of the Senate?   Well, not so much.   And the QCOA ruled as it should have:  That the correct procedure is Sections 42 (b) and (c) which prescribes 7 provinces with 50% of the population; with no province being able to opt out.   In other words, the provinces have to be at least consulted and give their ratification based on that formula; and even if the Senate self servingly voted against the amendment or hoisted it for six months, the House could pass it a second time and then the GG would then have no choice but to "seal" the amendment.

It's interesting that Québec, which has never ratified the 1982 amendment although it acknowledges the amendment does apply to the province, would be the ones challenging the law.   But if it wasn't there, another province would have filed a reference to the high court and the ruling would have been exactly the same.   Here's why:

Those of us who have actually read both Acts (as well as the numerous amendments in between) understand that the Confederation bargain was such that the Atlantic provinces would have at least as much say as Ontario and Québec in The Other Place, to offset representation by population in the House.

And while it rankles many in the West, it explains why representation in the Senate is as it is:   Ontario and Québec each have 24; Atlantic Canada has 30 (10 each for Nova Scotia and New Brunswick, 4 for Prince Edward Island, 6 for Newfoundland and Labrador); the four Western provinces have 6 each for a total of 24; and the territories get one each (prior to 1886, the Great White North didn't even have representation in the House, and only finally got Senate representation in the 1950s).

But more important, the reason the Fathers of Confederation set lifetime terms for Senators (this was changed to 75 years old by an amendment in 1965) and setting the minimum age at 30 (still in effect) was 1) to ensure Senators summoned would have the maturity to handle the responsibility of reviewing House legislation and if necessary amending or rejecting it; 2) to free Senators from political pressure of the kind having to report to the people every four years, unlike in the House.  Regarding the age limit, the QCOA pointed out that such an age limit, if it were created now or lowered from the present limit, would not be passable under section 44 either.

As time as gone on we've come to see that a second Chamber needs to be more democratic.   While some countries have in recent years abolished their Senates (Croatia and Norway, to name just two), other countries have had their Senate elected from the start or became so after major public pressure (for instance, the US Senate became elected in 1913, but is still seen as the more important body in Congress because Senators represent not only the people, but their respective state legislatures -- as it was they that originally selected the Senators from 1787 to 1913).

I know of only two other countries that have indirectly elected Senates via an electoral college:   France (although the campaign to reform or abolish there has been ongoing for some time) and Ireland (where the voters surprisingly voted down an abolition amendment earlier this month).   Canada is unique among democracies where the provinces don't even have to be consulted -- appointments are made solely by the Prime Minister.    Even for the Supreme Court, it's been established since during the brief Clark administration that the PMO will at least get a short list of recommended candidates, which the government doesn't have to accept but at least would consider before picking another candidate.

Reforms have never really happened in Canada because a) the push for a "Triple E" Senate of elected, "effective" and equal representation was really a poison pill aimed by some Westerners at Québec which would never have agreed to it and therefore would have preferred independence; 2) the failed Charlottetown referendum in 1992 had a Senate that was so much weaker than the House that it would have a joke job.   Running for the Senate under those parameters would have been like someone deliberately running in the primaries for Vice-President of the United States.   (Some states actually allow this!)

On top of Expensegate, Harper didn't need this.   And he will have to make a really strong case for his government when the Supreme Court reference is heard -- however, the QCOA ruling will be very persuasive in guidance.

The only question remaining is if the Senate can be abolished by the 7-50 formula?   I say unlikely.    That's because 1) the bargain of regional representation in the Upper House being changed would violate an important constitutional convention which while unwritten would nevertheless go against the intent of the Fathers and therefore be unacceptable; 2) Section 41 (b) protects both the 1915 amendment which ensures that any province (presently Prince Edward Island and Newfoundland) gets at least as many MPs as Senators; and also that in no case less than what a province had in 1982, and changing either or both principles requires unanimity.

Simply put, all ten provinces.   And I think the only plausible way to compensate the smaller provinces by having the lost Senate seat, is if it would become House seats elected at large (that is, the whole province).   Believe it or not, this is what Bob Rae's opening position was during the 1992 talks.

Now that, if actually implemented, would be fun.   Because Ontario and Québec are going to have 121 and 78 seats respectively after the next election.   Add 24 to each, and that becomes 145 and 102.   Meanwhile, BC would go from 42 to 48, Alberta from 34 to 40, Saskatchewan and Manitoba from 14 each to 20.   On the other side of the country, New Brunswick would jump from 10 to 20, Nova Scotia from 11 to 21, PEI from 4 to 8, Newfoundland from 6 to 12.

Yeah, that would go over well.   Newfoundland, with just a half a million people or so, would have nearly as much presence in Ottawa as Manitoba with more than double the population.     Alberta, with more half the population of Québec, would have only one third as many seats.   And so forth.

I really don't know where this is going.   Chances are, there will be no changes and we'll end up where we are now, with a otherwise dysfunctional chamber whose only useful purpose these days is to produce committee reports that really challenge the status quo and gets us to think.   Especially reports on national security and public healthcare, both categories of which have made the feds cringe when the reports were released.

But personally, this is what I think we should have in terms of reforms that could get 7-50:
  • The minimum age to run for the Senate is 18 years, just like the House;
  • There is no property requirement unlike now;
  • One must clearly have an established connection to his province or territory -- proof of residency or just proof of the fact they were at a physically located homeless shelter would suffice;
  • All Senators are elected for re-electable six year terms, with staggered classes (two halves with one half elected in three year waves; or three classes with one-third up for reelection every two -- as is the case in the States); in no case will a House election happen at the same time so there are no crossovers of current campaign issues;
  • proportional representation with super-districts of four to six Senators each, depending on population;
  • the representation that New Brunswick and Nova Scotia should be reduced so that the other Atlantic provinces get a bigger role.   This may mean more MPs for PEI and NL but in such an important body the small need the protection of the whole -- pardon the expression;
  • Ontario and Québec should give up four seats each and those given to the Western provinces, so each of those provinces would go from six each to eight;
  • the territories get two each instead of one;
  • the Speaker is elected, not appointed;
  • the Senate actually has real power and exercises it, including the power of a sub poena, and the right to reject legislation outright as it does now;
  • the Senate doesn't wait for legislation from the House to reach it to consider it (ending sober second thought); instead it can introduce legislation (except money bills) and have first thought on an issue if it so chooses, with each bill going through the three reading process in parallel with the separate House legislation, with the differences in House and Senate bills sent to conference for compromise before going through a final vote;
  • the Senate allows its floor proceedings to be televised, live (not just committee hearings);
  • if a federally appointed judge faces dismissal, that he or she faces an impeachment hearing in the House and then an open trial in the Senate with the Senators acting as proctors.    This way, the dismissal of a section 99 judge would have to get clear majority votes in both Houses, each sitting separately -- presently it's not really clear whether that's the case, or if a majority of the combined membership is required (although to date there has never been a trial, such a judge recommended for removal quits rather than face the humiliation of being rejected by the people's representatives); and
  •  the six month hoist for constitutional amendments is retained but at the end of the hoist the Senate must vote on the amendment, up or down.
At least for now,. the idea of railroading an "amendment" up our throats is waived off.   The Senate can't be changed like Harper would like it to.  It has to be done soundly and with a constitutional basis.

But we can't wait another 200 years for a change.  It has to be within the next four years.   Otherwise, we're condemned to a very boring place on the taxpayer's dime for a very long time.

UPDATE (2013/10/25 3:00 pm EDT):  Minor edits to correct math errors.

Senate or Star Chamber?

Barring a last minute change of minds, it looks like Senators Brazeau, Duffy and Wallin will be effectively impeached from the Senate.

I think there are a lot of questions that need to be answered.   I will recognize that I have written all three have a lot to answer for.

But I also believe in the principle of presumed innocent until proven guilty.   Something that Stephen Harper, the alleged guardian of the Constitution, does not believe in.  By using such a huge hammer before the criminal investigation is complete, Harper has effectively converted the Senate into a Star Chamber.   Bad King John would be very pleased that Magna Carta has been repealed, at least in Canada.

Friday, October 18, 2013

Where's the draft text?

Today, Harper and EU President Jose Manuel Barroso initialled a trade and labour agreement between Canada and the world's most powerful trading bloc.  Like I said in my last post, I think open trade with the EU will be overall good for Canada.

But don't you find it odd that there isn't even a draft text available for public consumption?   The final agreement may be two years off, but wouldn't it would be useful to know what each side "traded" [pun intended] to get to where we are today?

If the final agreement will be ready in 2015 that will be just in time for the next election.   We've fought three elections on free trade -- 1911, 1988, 1993.   There are going to be much bigger issues when the next campaign hits but this could be a dark horse that might come to the forefront.

We need to know what we're getting into, now.   Just because it's potentially a good thing doesn't mean it has to be a state secret.   Release the draft, Steve.   Let us read it, and let us decide.

Thursday, October 17, 2013

Harper picks CETA over H of C

I couldn't believe it when I heard it on the radio this morning.   On the first day of the debate regarding the Reply to the Speech from the Throne, Stephen Harper doesn't face off against Tom Mulcair -- by tradition it's the Opposition Leader that starts the debate.    Nope.   Harper hightails it to Brussels to sign the Comprehensive Economic and Trade Agreement with the European Union.

Sure it's taken long enough to finalize the treaty, which came down to of all things dairy and meat products.   There is a big concern that with the reduction of tariffs there could be a huge hit for dairy farmers, although beef producers stand to gain big.  (Although I think paying 30% more for pizzas and nearly triple for cheese as Americans do is ridiculous.)  And I do think that despite its shortcomings it will have a major net benefit for Canada, especially with labour mobility provisions.

But why the rush to sign it now?   Could not have Harper waited twenty four hours to discuss in more detail how he intends to implement the current round of policy planks before going to Europe?    Is it really necessary to sign an agreement on Friday?   Oh right, it will be mid-morning their time, about three hours before the markets open here.  The Canadian dollar needs to go back up to par after all -- after the debt cliff in the States this past week.

This action, picking Europe over Canada, is contempt of Parliament of the kind that is worse than touching the Mace.   If you can't defend you own policies at the start of a legislative session, then how much longer can we trust the Prime Minister on anything?    I wonder if Harper knows what patriotism means -- and I'm not talking about continuing to commemorate the War of 1812 which did not produce a "winner".

If Harper's going to be this disregardful, then at least CETA should be put up to a free vote in both chambers.    This is something where the people's representatives need to decide without the crack of a whip which Harper has had a firm grip of far more than any other Prime Minister in our history.

Wednesday, October 16, 2013

Here he comes, the PM in the big white sportscar ...

The second session of Canada's 41st Parliament opens today.    And early word about the Speech from the Throne is that PMS (Prime Minister Steve) will make a move towards consumer rights.


He was against pick-and-pay cable and satellite, before he was for it.

He was for long term cell phone contracts before he was against it.

He was against cell phone company mergers -- now in the next auction of bandwidth it looks like those restrictions are going out the window.

There's no indication yet that he'll allow financial institutions and life insurance companies to set whatever mortgage rate they want, especially if they're below the general market (remember earlier this year when Slim Jim practically ordered an insurance company to reverse a rate decrease).   The public backlash might have changed Harper's mind about that too.

Why all of this?

To try to lift a page from the NDP.  Although the Liberals are out in front despite a very weak leader in Justin Trudeau, the Cons must be worried that Tom Mulcair actually has a chance to win in 2015 and lead our country's first ever socialist federal government.    And as I've written before, Mulcair actually appears to favour free enterprise over the Conservatives.    Unthinkable for the NDs even a decade ago.

Oh, and let's not forget the other week when Harper said he won't take no for an answer when it comes to the approval of the Keystone XL Pipeline.    What's the point of having a National Energy Board, or any arm's length quasi-judicial board when the Cabinet can just override their decision?    Such powers make the resident of 24 Sussex, whoever he or she is, a dictator.    Even the British PM doesn't have nearly those powers -- the only reason he's perceived to have more is because he has his finger on The Button (or one of them).

And even if the NEB says yes but Obama says no, what will Harper do?   Order Alberta to turn off the pipelines and let the southern b******s freeze in the dark?   Sue maybe, and under the much hated Chapter XI of NAFTA.    Doesn't bode well to help America -- and us -- get off OPEC's client list.

Meanwhile, Parliament goes into its 13th year of renovations.   A $50 million job is running up to $5 billion and counting.    All parties are to blame on that one, but you'd think Steve would hire as many stonemasons and other general labourers as he could -- even foreign ones on temporary work permits -- and tell them, get this done in time for the next election.   Seven to ten years more is crazy.   Yeah, there's asbestos there, but how about closing the place for two months while it's cleared out?   They had the summer.

A new session?  Much ado about nothing.    There is no reset button today.    Whether it's the Senate or the train crash in Lac Mégantic, Harper still has to answer some tough questions.

In the meantime, it's time to stop the grandstanding standing ovations in the House.    There were nearly none under Mulroney or Chrétien.  Those demonstrations don't impress me much, or a lot of other Canadians.   Just a change there would indicate Harper actually respects the integrity of the House, or what's left of it.