It appears Harper government trying to attack Canada’s Constitution the back way; top court hears final government plea to allow easy, but unconstitutional path to Senate reform

Judges, as Harper predicted, are acting as check on his power by Stephen Maher, Postmedia News, November 16, 2013, Vancouver Sun
A few days before the election of 2006, when the polls showed he was about to end 13 years of Liberal government, Stephen Harper told reporters that Canadians shouldn’t be uneasy at the prospect of “absolute power” for a Conservative government because it would be kept in check by senators, civil servants and judges appointed by the Liberals. “We have no alternative but to accept the checks,” he said. “They’re part of our system. Judges are named. Judges can’t be removed except under extraordinary circumstances.” Seven years later, the Senate and the senior ranks of the civil service are full of Harper appointees, but judges are acting as a stubborn check on Harper’s absolute power, just as Harper predicted.

The prime minister seems to resent limits on his power, going so far as to recently state that he wouldn’t take no as an answer from U.S. President Barack Obama on the Keystone XL pipeline, so it will be interesting to see how he responds to the bench. On files that are key to his plans for the next two years, Harper faces judges who seem disinclined to bend to his will.

The first is criminal justice. The overwhelming view among criminologists is that mandatory minimum sentences are expensive and ineffective at deterring crime, and in the United States even the most conservative politicians are turning against them because state governments can’t afford to house and feed so many minor offenders. Canada’s Conservatives – taking what you might call a values-based approach to crime and punishment – have a very simple message on crime: we need to get tough on criminals. The great thing about that message is that many Canadians agree with it. The Conservatives nurture that public sentiment, connecting with voters and donors at every opportunity, sometimes to the point of absurdity. In the recent throne speech, for instance, the government promised to bring in “Quanto’s law,” in honour of a slain Edmonton police dog. The law will make it illegal to kill or harm a law enforcement animal, which is, of course, already illegal.

In order to keep our streets safe, protect police dogs and keep connecting with supporters and donors, the Conservatives have imposed mandatory minimum sentences on everything from growing pot plants to gun crimes. On Tuesday, the Ontario Court of Appeal ruled that one of those mandatory minimums is unconstitutional, saying it violates the section of the Charter of Rights and Freedoms that prohibits “cruel and unusual punishment.” … This should not have surprised the government, since when the Tories tabled the bill, the Library of Parliament wrote in a legislative summary that “it is possible for the mandatory punishment, in a specific matter or reasonable hypothetical case, to be ‘grossly disproportionate,’ “ which is just what the court found. The government seems to have ignored that warning, and according to former Justice Department lawyer Edgar Schmidt, it is not properly checking that its legislation complies with the charter.

In January, Schmidt filed a suit against the government, in which he alleges that since 1993 Justice Department lawyers have been instructed to ignore a law that requires Parliament be informed when legislation might violate the charter. The day after he filed his suit, the government fired him, which Federal Court judge Simon Noël described as “unbelievable.” The government can’t, as Harper pointed out back in 2006, fire Noël, but Justice Minister Peter MacKay did criticize judges who have balked at imposing victim surcharge fees on destitute offenders, and chided the appeal court that overturned the mandatory minimums. “We will not be deterred by a few judges that take a different view,” he said. “That is their right, but it is in my view Parliament’s discretion to pass laws.” MacKay knows, but didn’t say, that it is the court’s responsibility to determine if those laws comply with the charter, and he knows that the government can’t fight the bench.

It will be interesting to see how Harper reacts when the Supreme Court justices eventually tell him that he can’t reform or abolish the Senate without a deal with the provinces. It seems likely that he will see this as a communications challenge. The prime minister can’t fight the Supremes, can’t reform the Senate, can’t lock up everybody he’d like to lock up, but he can deliver messages that press his supporters’ emotional buttons, even if he can’t deliver on what he has promised them. [Emphasis added]

Supreme Court wraps up ‘high stakes’ hearings on Senate reform by Andrea Hill, Postmedia News, November 14, 2013, Calgary Herald
“What came out over the course of the three days of hearing is just how difficult some of these questions are and the high stakes that are involved,” said Adam Dodek, a law professor at the University of Ottawa. “This decision isn’t only about the Senate, it’s about how you make fundamental changes to the Constitution.” On Wednesday, after Saskatchewan counsel Graeme Mitchell sided with the federal government and said complete provincial agreement is not needed for the Senate to be abolished, Justice Louis LeBel asked whether that precedent would mean Canada could be turned into a dictatorship without the consent of all provinces. Mitchell called that “unlikely.” Saskatchewan’s provincial assembly unanimously passed a resolution last week calling for abolition of the Senate and Mitchell told the court that the red chamber is “beyond repair” and needs to be scrapped. His remarks didn’t sit well with Francophone groups or the territories, who argued Wednesday that the Senate plays an important role in protecting minorities who aren’t well represented in the House of Commons and who would likely lose representation if senators were elected.

“If the court gives the green light for Parliament to make some changes to the Senate without invoking the formal amending process, that’s going to have a very real political impact and we could potentially start to see the Senate operate in different ways,” she said. The court’s decision is not expected for several months. [Emphasis added]

Canada’s top court hears final government plea to allow easy path to Senate reform by Joan Bryden, The Canadian Press, November 14, 2013, Calgary Herald
Don’t make it impossible to change Canada’s scandal-plagued Senate. That was the underlying message to Supreme Court justices Thursday as they wrapped up a historic hearing that will decide how — or if — the much-maligned upper house can be reformed or abolished. In the final word at the three-day hearing, the federal government urged the justices to accept its argument that modest reforms — to allow for non-binding elections and term limits for senators — can be implemented easily by Ottawa alone, without any input from the provinces. “This is not a narrow-minded, literal approach (to the Constitution), as has been repeatedly said (by provinces) in these proceedings,” federal counsel Robert Frater insisted. “It is a comprehensive approach that should permit meaningful action on reform to the Senate instead of another 135 more years of talk.” His argument got partial support earlier Thursday from one of two lawyers appointed by the court to provide independent advice on the matter.

John Hunter said the federal government alone should be able to create a process to allow consultative elections for senators, provided that the results are not binding and the prime minister remains free to appoint whomever he or she chooses. He argued that this would simply amount to another form of consultation for the prime minister, who can already consult whomever he or she pleases about Senate appointments. “The reality is that those who would oppose this would really say the prime minister can get sources of guidance from any source he or she wishes. He can talk to his friends, political party activists, he can read petitions, he can use a ouija board,” Hunter said. “The only thing he can’t do is consult the electorate and that’s a rather remarkable proposition.”

The other lawyer appointed by the court, Daniel Jutras, disagreed. He joined the vast majority of provinces in arguing that creation of a Senate election process would require a constitutional amendment supported by at least seven provinces with 50 per cent of the population. Jutras and Hunter were in sync on other issues before the court. They both sided with most provinces in arguing that 7-50 approval would be needed to impose term limits on senators and that unanimous provincial consent would be necessary to abolish the red chamber entirely. The federal government maintains 7-50 would be sufficient for abolition. None of the various amending formulas in the Constitution specifically address the issue of abolishing the Senate but Jutras said that silence should be broadly interpreted to mean “such a fundamental change to the constitutional order” would require unanimous consent. Chief Justice Beverley McLachlin appeared to agree. She suggested fundamental characteristics of the federation — including the assumption that Canada would continue to have two houses of Parliament — were “embedded” in the 1982 Constitution Act by first ministers who did not contemplate ever doing away with them. “One could infer from that … they are just fundamental propositions, so fundamental that if we were to question them, we don’t know where we’d be going. We’d be in outer space,” McLachlin said. “I think we’re saying exactly the same thing,” replied Jutras. The top court could take six months to a year to mull over the arguments made by the federal government, all 10 provinces, two territories and several other interveners. [Emphasis added]

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