Law Times

Page 6 May 5, 2014 • Law TiMes www.lawtimesnews.com COMMENT Canada's legal, institutional paralysis rime Minister Stephen Harper's comments following the Su- preme Court's ruling on the Senate reference last month summed up the paralysis Canada fi nds itself in on so many fronts. "Essentially, this is a decision for the status quo, a status quo that is supported by virtually no Canadian," he said in reaction to the top court's ruling rejecting the federal government's bid to unilaterally reform the Senate through elections and fi xed terms for senators. e Supreme Court had good reason for ruling as it did. Given that s. 42 of the Constitution Act requires the approval of the House of Commons, the Senate, and seven provinces representing 50 per cent of the population for any amendments that would alter the fundamental powers or method for selecting members of the upper chamber, it was clear the government was on shaky legal ground in trying to proceed on its own. But with issues like the bid to set up a national securities regulator and even government attempts to muscle changes to labour contracts suff ering similar fates in the courts, Canada seems like a country where it's diffi cult to make major changes to much of anything. at's not to say it's not valid to require provincial consent for fun- damental reforms to institutions like the Senate. Given our years of unity battles, it's certainly wise to have a broad consensus lest we once again alienate a particular region of the country. And even absent the legal restrictions, it's clear it would be politically unwise to push ma- jor reforms forward without the agreement of essentially most, if not all, of the provinces. But the government's proposed reforms, while signifi cant, were s a kid growing up in Ottawa, I watched Perry Mason on black and white TV with William Talman starring as the charac- ter of Hamilton Burger who kept losing court cases to Raymond Burr every week. Contrast that with Prime Minister Stephen Harper, a man who has lost fi ve straight decisions at the Supreme Court of Canada. Burger did his own legal preparation, but Harper has scores of lawyers working for him in the Justice Department. You might think at least one of them would give him some advice about his chances. But no, the Hamilton Burger of Canada's Parliament tries once again and loses. ree of the court decisions against Harper dealt with tough-on-crime bills. He also lost his bid to appoint Justice Marc Nadon to the Supreme Court bench. Harper's latest loss came 10 days ago in his reference case on reforming the Senate. A few years ago while speaking to Conservative party supporters in Sault Ste. Marie, Ont., Harper complained the Supreme Court was full of Liberal appointments who were frustrating the will of Parliament. Today, it's harder for him to blame Liberal judges. Five of the nine Supreme Court judges will soon be Harper choices. So Harper instead whines about the court's judicial deci- sions even though he was the one who asked for advice on Senate reform. And when the court comes down with a decision he doesn't like, Harper calls it a decision for the status quo. It was nothing of the sort. e Su- preme Court couldn't care a sweet fi g about the Senate, whether it lives or dies or is full of Harper cronies or crooks. e court doesn't make value decisions. It de- cides on the law. e Supreme Court's unanimous judg ment was evident even before it came down. e news media was full of predictions about how Harper's chances were slim. A fi rst-year law student could have warned "Hamilton" Harper. e Constitution is clear. It says that for the type of Senate Harper wants, he needs the approval of seven of the 10 provinces with 50 per cent of the population. If he wants to go further by abolishing the S enate, he needs the approval of all 10 provinces. It may not be fair or fun but it's the law as written in the Constitution. And if there's one thing the Supreme Court re- spects, it's the law. e ruling wasn't a decision for the status quo. e court went out of its way to help Harper by telling him exactly what he has to do to fi x the Senate. e fact that Harper doesn't like to talk to the provincial premiers may make it diffi cult for him to crack the status quo, but that's his problem. At one point, Harper sent out his favorite political at- tack dog, Pierre Poilievre, who dumped on the court. He began with some class, explaining to reporters that the Supreme Court had provided the Harper govern- ment with "a legal instruction manual" on how to proceed with Senate reform. But Poilievre, being the cabinet min- ister we all know and love, then came up with a cheap shot: "Unfortunately, the Supreme Court has decided Parliament cannot make meaningful reforms." No, it hasn't. In fact, the court gra- ciously told Harper what he needed to do under our Constitution to bring about his meaningful Senate reform. And Poilievre, instead of saying the Harper government would listen to the court and try to bring about the reforms legally, noted the government "does not have any intention of reopening constitu- tional debates at this point." at's your decision, not the court's. So don't blame the court. e Supreme Court never said any- thing about Harper having to open con- stitutional debates, only that he needed the agreement of the provinces. How he achieves that is up to him. It all depends on whether Harper is willing to talk to the provincial leaders. Poilievre ended up saying the Harper government was "committed" to making the Senate "a more accountable institu- tion" but uttered not a word about work- ing with provincial leaders to make it happen. But why would we expect Harper to start trying to work with the provincial leaders on Senate reform? at hasn't been his approach in the past. LT uRichard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers.com. ©2014 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, com- pleteness or currency of the contents of this pub- lication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. 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Instead, we remain, as Harper noted, stuck with the unpopular status quo as it's unlikely the government will ever get the de- gree of consensus needed to move forward without opening a constitutional can of worms and risking a ruckus in some region of the country. From a purely logical perspective, that's too bad. We should be able to deal with an institution like the Senate that so many people dislike in its current form. e likely answer to the dilemma, then, is piecemeal change. Rather than bold moves, Canada is a country where we'll o en have to live with incremental re- forms over time. Politicians should take note. — Glenn Kauth The Hill Richard Cleroux P A

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