Supreme Court handed Harper a constitutional lesson, not a loss

Posted on April 28, 2014 in Governance Debates – GlobeDebate
Apr. 28 2014.   Bob Rae

Some of the commentary on Friday’s Supreme Court decision has surmised that this was all a massively clever plot by Stephen Harper to get himself off a political hook: He knew all along what the Court would say, and only wanted the Supremes to put this issue on ice forever.

There is a simpler explanation. Mr Harper and his colleagues believe in a Senate that is elected, divided equally between the provinces, and would have effective powers. They realized that this change would require a constitutional amendment, but did not want to open a path which they had slagged so unmercifully during the Meech and Charlottetown debates. They thought they could get an elected Senate by stealth and subterfuge. After much delay, they finally realized that a reference to the Supreme Court would be required, since Quebec had already started the process. Their hand was forced, and it was left to the Supreme Court, in a unanimous opinion, to remind Mr. Harper and his government of the ABC’s of constitutional government.

Canada is a federation. It has a form of government known as constitutional government, in which the power of both the federal and provincial governments is defined and limited. The make-up, appointment process, and powers of the Senate are clearly set out in the Constitution. An institution so fundamental can’t be changed, or done away with, by Parliament acting alone. To change its method of selection, and the terms of its members, will require the support of Parliament plus seven provincial legislatures whose populations make up more than half that of Canada. To abolish the Senate will require unanimity.

The Harperites, and some others, are now busy saying the Court has endorsed the status quo and that changing the Senate is now “impossible.” This is another act of spin. The Court has no opinion about the Senate, its utility, or its value. It neither praises nor condemns the institution. It simply tells us all to give our heads a shake and understand the constitution of Canada. Senate reform, and other constitutional change can happen if there is enough strong desire for it to happen. It means the federal and provincial governments would have to start talking to each other, and that someone would have to exercise leadership. To say this is “impossible” is to take our current lethargy, backbiting, and political churlishness as normal for all time. To quote Ira Gershwin, the renowned American constitutional scholar, “it ain’t necessarily so.”

Mr. Harper could always make better appointments to the Senate. He could make it a place where contrary opinions were welcome. He could, by these appointments, encourage it to be less partisan, and more thoughtful. And he could, slowly, quietly, be encouraging some back channel conversations about how to make constitutional change possible. If most provinces insist on referenda to approve change, it’s fair to say it becomes that much harder to do. But never say never.

Should constitutional change be a top priority, a make or break, for any government? No, that would be unwise. But neither should we walk around blaming the Court for our problems. Mr. Harper does not have a Senate problem because not a single senior judge, most of whom he appointed, refused to let him do an end run around the constitution. He is the author of his own misfortune. He is the man who insists, again and again, on governing in the name of a theory. And as Edmund Burke, the unsung hero of the 1867 constitution, once reminded the world, there is nothing so foolish as doing just that. >

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