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Law Times • June 6, 2011 Harper's Senate conundrum promised a Senate that would be equal, elected, and eff ective. In those days, Steve Harper, as W he called himself on his election posters, endorsed the notion of a triple-E Senate and made a sol- emn promise that it would be so if he ever came to power. But the years passed. Ontario and Quebec fi ercely opposed an equal Senate that would reduce their representation to 10 sena- tors each, the same as Manitoba and Prince Edward Island. Grad- ually, the Reformers gave up on the notion of an equal Senate. Th en Harper, who had become Stephen once again, merged the Reform party's later incarnation, the Canadian Alliance, with the Progressive Conservative party. He later slid into power in 2006 with a minority government. In the meantime, Harper promised that if ever he got a ma- jority, supporters would get their elected and eff ective Senate. So now he has his majority in both the House of Commons and the Senate. As a result, the Reform chickens are coming home to roost this weekend as there's a big party convention in Ottawa. Delegates, apart from ask- ing for GPS leg bracelets for sex criminals, chain gangs for convicts, unregistered guns, tax breaks for big corporations, more private health care, and all sorts of other good things, are going to be clamouring for their long- awaited elected Senate. Calling it a single-E Senate is considered sarcastic. Half of the provinces are against Senate reform because they don't want to lose seats in the Red Chamber to some other up- start province. At the same time, NDP politicians have a simple answer to the conundrum: abol- ish the Senate. Send the senators home with pensions and be done with them once and for all. Do- ing so could save public taxpayers about $357 million a year. Th e hypocrisy in Ottawa right now is overwhelming. For all of Harper's pious musings about democracy with an elected Sen- ate, he appointed a trio of losing candidates — Fabian Manning of Newfoundland, Larry Smith from Montreal, and Quebec City's Jo- sée Verner — to the Senate. It doesn't get any more hypo- critical than that. Two of the ap- pointees, Smith and Manning, had been senators before and had quit to try their luck as elected MPs. But when they failed to win a Commons seat, they went back to their patronage rewards. If there was ever a need for reform, this was it. It capped a six-year orgy of Harper stack- ing the Senate with cronies and failed election candidates. He appointed 34 unelected senators in all and set a record that goes back to Confederation. All of this comes from a reformer who had once promised on his mother's hen the old Reform party was still in the business of politics, it The Hill By Richard Cleroux head never to appoint a single unelected senator. Ontario Premier Dalton McGuinty wants to abolish the Senate. So do NDPers Jack Lay- ton and Nova Scotia Premier Darrell Dexter. Quebec's Intergovernmental Aff airs Minister Pierre Moreau takes a more legalistic stand. He says Harper can't reform the Sen- ate all by himself and must get a constitutional amendment adopt- ed with the approval of seven prov- inces having at least two-thirds of the Canadian population. Nice try, Moreau. But we all know what happens when we try to reopen the Constitution. Has anyone forgotten the Meech Lake disaster and the Charlottetown Accord? Th ey made rich people out of lawyers and gave us nothing except a painful lesson. (It didn't hurt journalists, either. Th e over- time helped pay for an addition to my home. My wife still calls it the "Meech Lake extension.") What really burned the pub- lic and hurt Harper's credibility in recent weeks was former cabi- net minister Verner collecting $116,000 as a so-called separa- tion indemnity on her way down the hall to the Senate and her sal- ary of $133,400 a year. Harper's argument, presented so eloquently on CTV's Ques- tion Period by his faithful senior minister Jason Kenney, was that he needed three more unelected senators to ensure he could reform the Red Chamber. It's similar to the guy who tells the board of directors he has to appoint his brother to the board so there's no more nepotism at the company. Verner didn't help matters by telling reporters, now that she's safely in the Senate, that they shouldn't expect her to be looking after local issues anymore since she has bigger things to take care of. Th e problem with that logic is that senators are supposed to look after provincial interests. Th at's the argument Quebec will make at the Supreme Court. Th en there's Harper. Reform members who migrated to his new Conservative party want him to deliver on his promise to reform the Senate. But the provinces aren't happy with his plans. As a result, it's no wonder he doesn't know whether the Senate will ever end up being equal, elected or eff ective. Harper, of course, desperately wanted a majority government. But nobody ever said it would be easy, Steve. Richard Cleroux is a freelance re- porter and columnist on Parliament Hill. His e-mail address is richard cleroux@rogers.com. COMMENT PAGE 7 Ontario needs a northern law school BY KAREN DRAKE For Law Times O ntario has not had a new law school in more than 40 years, but many people believe it needs one, particu- larly in the north. Indeed, an examination of the rationale underlying Lakehead Univer- sity's proposal reveals a compelling case for a new law school that would address both cur- rent and prospective unmet needs. Lakehead wants to establish a northern faculty of law with a spe- cial emphasis on a hand- ful of key issues that are particularly germane to northern Ontario. Spe- cifi cally, Lakehead's law school would focus on addressing the legal needs of aboriginal com- munities in the north; dealing with the de- clining participation in sole- and small-law fi rm practice; and concentrating on legal is- sues related to the resource-based economy of northern Ontario. In the early 1990s, each of the law societies in Canada delegated the task of assessing and recommending proposals for new law school programs to a committee of the Federation of Law Societies of Canada. Th e purpose was to ensure consistency in the approval pro- cess and portability of law degrees across the country. In February, the federation approved Lakehead's proposal, subject to certain con- ditions, and recommended that law societies in Canada do the same. A law society's ap- proval means graduates of the new program are entitled to enter the licensing process without having to satisfy any additional re- quirements. On April 28, the Law Society of Upper Canada's governing body voted unanimously in favour of Lakehead's proposal, subject to the same conditions imposed by the federa- tion, including approval by the appropriate governmental authority. All that remains on Lakehead's to-do list is to get the green light from Ontario's Ministry of Training, Colleg- es, and Universities for funding support. Th e government should support the pro- posal for a number of reasons. In particular, if the province wants to increase opportuni- ties for First Nations and Métis students to be educated in professional programs, locating a law school in the north makes sense. Ac- cording to the 2006 census, aboriginal people make up only two per cent of the total popu- lation of Ontario but more than 10 per cent up north. However, all six of Ontario's law schools are concentrated in southern Ontar- io. It takes more than 16 hours to drive from Th under Bay, Ont., to the closest school. Be- ing able to live at home with the support of family and friends and continue to participate in community feasts, powwows, and gather- ings can make attending law school a fi nan- cially and emotionally viable option for First Nations and Métis students. Despite the commendable goals of having a northern law school, the project also has its detractors. According to one line of thought, the economy in the north isn't strong enough to support more lawyers. While it's true that the forestry industry has taken a hit, anyone who has doubts about northern Ontario's economy has probably not heard of the Ring of Fire or the multitude of other mining proj- ects starting up in this region. Th e Ring of Fire is a massive area approximately 500 kilo- metres northeast of Th under Bay that's wide- ly believed to contain mammoth deposits of chromium, nickel, copper, platinum, and pal- ladium. www.lawtimesnews.com According to some estimates, the Ring of Fire contains enough chromite, a mineral not previously found in North America that's used to make stainless steel, to supply world markets for the next 100 years. Some predict Th under Bay will boom like Sudbury, Ont., did following the discovery of nickel. Th e economic benefi ts of the Ring of Fire Speaker's Corner are tantalizing, but in order to access them, the parties involved will need to accommodate the constitutionally protected rights of Métis and First Nations peoples. Th e Ring of Fire itself is located on the traditional territories of a number of First Nations, and the access route needed will cut through them. Both mining industry repre- sentatives and aboriginal stakeholders, not to mention provincial and federal government decision-makers, will need legal advice and guidance on their respective rights. Th ey include treaty and constitutional rights, land claims, and the law as it relates to mineral and resource development, all of which are precisely the topics Lakehead's fac- ulty of law will focus on. Th is guidance can't come too soon. Th e lack of development of the Ring of Fire so far has been attributed, at least in part, to blockades set up by First Nations. Another critique of Lakehead's proposal is that Ontario already has more law school graduates than articling positions. Indeed, the shortage of articling positions was a hot topic of discussion in the recent bencher election given that 250 licensing candidates didn't fi nd one in 2010. Th e solution to this problem, though, isn't to limit the number of law school graduates because a shortage of articling positions doesn't equate to an abundance of lawyers. In fact, the law society's fi nal report of the sole practitioner and small-fi rm task force noted a shortage in the number of lawyers in rural and northern Ontario. Th e gap is expected to become more severe as aging lawyers in these areas retire. Th e result is an access-to-justice issue for Ontario's northern and rural citizens. Lakehead's faculty of law would be in a perfect position to address this problem. Students from northern Ontario who go to school there and avoid racking up what can amount to more than $100,000 in debt are more likely to stay and practise in northern Ontario, where salaries can't compete with those on Bay Street. What's more, Lakehead's law program aims to give students the entre- preneurial skills they need to succeed in sole and small-fi rm practice. As for the shortage of articling positions, the solution will need to come not only from Lakehead and law schools in general but also the combined eff orts of the law society and the bar to fi nd creative ways to allow licens- ing candidates to get the practical mentoring they need and support small fi rms and sole practitioners in taking on students. Lakehead has already completed much of the diffi cult groundwork. Not only has it se- cured approvals from the federation and the law society, it has also purchased a magnifi - cent Queen Anne-style building to house the law school and has acquired dozens of boxes of legal texts to fi ll its law library. All that re- mains is for the province to allow Lakehead to achieve its laudable goals. Karen Drake is an associate with Erickson & Partners in Th under Bay. She's a citizen of the Métis Nation of Ontario and a member of the chancellor's task force that has the mandate to secure approval for Lakehead's proposed faculty of law.