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.
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