In Canada, provincial governments of every stripe are insisting that the Supreme Court tell the country whether legislation to facilitate advisory elections on the appointment of Senators is constitutional. The conservative provinces and the provincial government that doesn’t believe in Canada (as well as all the provinces to Harper’s left) stand shoulder-to-shoulder before the Court. And they are complaining that the federal legislation that neither binds their provinces, nor future Parliaments, is unconstitutional because it could to lead to the creation of an elected Senate — without their participation or purchase.
Only in Canada? Thank goodness.
Not one premier disputes that today’s Senate is illegitimate. Premiers and their puzzling young academic advisors, however, are loath to say why. They speak of corruption, public disenchantment, and the sad compulsion of it members and their parent — a "dictatorial" PMO — to be partisan. They acknowledge that the Senate has never been as sober as its binge-drinking champion John A. Macdonald promised 146 years ago.
Premiers don’t admit, however, that even at its imagined best, it is an anachronism; it’s a legislative body, with legislative influence, that isn’t elected by the people. And its members needn’t fear what the people think as long as they are there.
The premiers are telling the Supreme Court that Harper can consult his conscience, blue-ribbon Canadians, premiers, and his party brass in each province, but not the people in each province. That would be fundamental change; it would shortly make the Senate — as it did in the U.S. — a democratic and, therefore, a legitimate legislative institution.
Premiers can’t come out as reactionaries fearful of direct democracy because that would embarrass their supporters. Otherwise, they would have eagerly taken Harper and Alberta to the Court years ago, while four senators were being appointed according to the will of four advisory elections in Alberta. Nevertheless, they are.
Court activist Justice Rosalie Abella suggested to the federal government’s lawyer: “You’re not inviting us to look at the bigger picture … of how Canada works.”
Exactly. That’s what Harper is not asking the Court to do. Please, Harper is requesting, don’t tell us to try to put into Canada’s written constitution first what the people may freely do — in consultative elections, in each province, over time.
Certainly, Harper is trying to reduce irrevocably the powers of majority prime ministers by making Parliament as a whole more responsive and credible across the populace. Also, he’s belittling the presumption of premiers that they alone speak for province-wide interests. No future prime minister would dare repeal legislation that simply invites voters to declare formally who they want to represent them in the Senate.
Still, as a constitutional opportunist, Harper is in good company.
Pierre Trudeau freely threatened to tell the Parliament of Westminster — Canada’s constitutional court before the Constitution Act of 1982 — to “hold its nose,” to respect the letter of the law, and make the changes to the BNA Act that Canada’s Parliament wanted, with or without the support of the provinces. His threat of unilateral federal action shattered the status quo because it was legal.
Westminster was sorely tempted to look at the “bigger picture.” But, it kept still. So should the Supreme Court today.