Harper's Senate Reform Gamble

[Ricki Bobbi]

The last change to term limits happened in 1965 and had to be approved by the British Parliament.

Some constitutional experts in the Globe and Mail this week said that this set the standard for changes made to term limits. Any change probably has to go to become an amendment.

It appears that selecting Senators by election could be done without a change to the constitution. (Yes a succeeding Prime Minister could repeal the legislation, but that would be political risky.)

Term limits would need a change to the Constitution.

s. 29 of Constitution Act 1867 defines that Senators can sit until they are 75 so it would need a constituional amendment.

I'm not 100% sure but I think it would fall under 7/50.

[jdobbin]

It appears that selecting Senators by election could be done without a change to the constitution. (Yes a succeeding Prime Minister could repeal the legislation, but that would be political risky.)

Term limits would need a change to the Constitution.

s. 29 of Constitution Act 1867 defines that Senators can sit until they are 75 so it would need a constituional amendment.

I'm not 100% sure but I think it would fall under 7/50.

Harper wants elections and term limits without an amendment.

[Ricki Bobbi]

Harper wants elections and term limits without an amendment.

Great. I'd ask for support of your statement, but you might take that as a personal attack...

So the legislation on term limits could be open to a court challenge.

[Ricki Bobbi]

Oops, double post.

[jdobbin]

Great. I'd ask for support of your statement, but you might take that as a personal attack...

So the legislation on term limits could be open to a court challenge.

There is no need to be snide.

CTV just finished reporting on it.

http://www.ctv.ca/servlet/ArticleNews/stor...?hub=TopStories

[Ricki Bobbi]

There is no need to be snide.

You tell me how to behave in one post, then lecture me about the proper way to treat posters in another?

And I'm the one picking fights? Hmmmm.....

[jdobbin]

You tell me how to behave in one post, then lecture me about the proper way to treat posters in another?

And I'm the one picking fights? Hmmmm.....

I have no idea how you treat others. I'm just saying if you have a question, ask it. How is that pickng a fight?

If you have knowledge on this issue or any other, just say so, cite it or whatever.

[bradco]

if im not mistaken you need to have at least three quebec judges who are trained in civil law rather than common law....two would be a headache if they have differing legal opinions on a case

Valid point. Let's just have a seperate court for Quebec's system, it is a completely different system. Their Criminal Code cases can be tried under the SCC and their civil system under the Quebec Court or whatnot. Gives them a little taste of soverignty to make the soft nationalists happy, balances the representation.

I guess there could be a seperate higher court for Quebec...

Does it matter a whole lot where the judges are from though anyways???

[Ricki Bobbi]

I have no idea how you treat others. I'm just saying if you have a question, ask it. How is that pickng a fight?

Don't attack my posts and I won't attack yours.

If you are going to start posts with

There is no need to be snide

you are picking a fight.

[August1991]

I have no idea how you treat others. I'm just saying if you have a question, ask it. How is that pickng a fight?

Don't attack my posts and I won't attack yours.

Knock it off. You're both good posters and I enjoy reading what you write.

Please don't post nonsense.

I guess there could be a seperate higher court for Quebec...

Unnecessary.

All that's required is several judges who understand a Civil Code. They explain to the others the implications of a decision. In fact, whether it's common law or Civil Code, the intent is the same - a good judge merely seeks a good way to solve a problem. All things considered, our Supreme Court has managed this for over 100 years - including a new Civil Code-inspired Charter.

I'm not sure if many Canadians understand how exceptional Canada is.

[Topaz]

Has Harper the gonads to call an election this fall or next spring? I, for one can't wait for the next election and to see Harper over on the other side of the aisle wanting to be PM again!

[Shakeyhands]

I'm not sure how this will play out.

I also like Harper's signs that he won't broker deals throughout a minority. Strong leadership is strong leadership regardless of how many seats you have in the house.

a little off topic but..... Seems everything of importance has led to teaming with the one party who doesn't want to be part of Canada, I can't see what deals he has made playing well come election time especially because of his jumping into bed with them all the time.

[MSH]

The last change to term limits happened in 1965 and had to be approved by the British Parliament.

Some constitutional experts in the Globe and Mail this week said that this set the standard for changes made to term limits. Any change probably has to go to become an amendment.

This is where it gets quite ambiguous, because in 1965 our constitution was the BNA Act--a British law--and to amend it in any manner was like amending any law in British parliament. There was no need to consult provinces or broker deals or any other such things. In fact, from what I can tell the only thing that kept Britain from aminding it on a whim was parliamentary convention. The only limitation on British control over our constitution in 1965 was perhaps provided by the Westminster Act or even amendments made after WW2 that added provisions allowing the Canadian gov't to initiate its own amendments (and thus allow Canada to un-do a British amendment it didn't like.

In any case, in 1965 all we had to do to amend the BNA act was to pass a law just like any other law, and by parliamentary convention Britain would rubber-stamp it (to do otherwise would be like the Queen or GG refusing a PM-Elect's request to form a new gov't after an election, or refusing to allow the existing PM to drop the writ, which would cause a bit of a scandal as it did when Lord Byng wouldn't allow an election and insisted the Conservatives form a cabinet out of an opposition coalition). So to say that the age-limit modification set any kind of precedent is a rather shaky argument since the BNA act and the 1982 Constitution Act are separate acts and open to different interpretations.

In any case, where do you draw the line? We don't require a constitutional amendment to change the number of seats in the commons (except that PEI must have at least 4 and maybe Quebec has to have 25%), and Mulroney just added extra seats to the senate when he didn't get his way with the GST (he went right to the Queen to get assent too, who out of parliamentary convention to defer to elected institutions automatically said yes).

Also, don't forget that there are no rules specifying HOW a senator is selected. In fact technically speaking our constitution says that the Queen delegates the authority to do that to the GG, who must choose from a list of recommendations provided by the PM. It is only that crazy "parliamentary convention" that allows the PM to personally select a senator, becasue by that convention the PM presents a single recommendation and the GG can refuse, but wouldn't so as not to unduly stir the pot. Furthermore, the GG can only appoint a senator based on the PM's list, so the GG cannot decide for herself (only veto).

In any case, since the whole procedure is largely "parliamentary convention", Mulroney allowed an elected senator to sneak in simply by promising to the Alta. gov't to honour its selection. We needed to pass NO law or do ANY amendment--Mulroney simply modified the conventional practise. If the Liberals would've allowed the convention to evolve we would have a handful of elected senators today, however Cretien and Martin were not exactly champions of democracy.

If you look at all of the Senate's recent history then there is probably just as much argument that a term limit can be imposed without constitutional amendment as with. Harper may go as far as make a jaunt to Buckingham Palace one day and say "Hey Liz, can I tweak the senate just a little?" and she'd say "uh sure whatever, I see no harm in it". I also think that he could pass a law regarding senator term limits that is carefully worded enough to make it parliamentary convention for a senator to "voluntarily resign" after a fixed term. Given his unprecedented appearance before the Senate and his provocative comments such a strategy just might work--even if the courts were to rule that term limits weren't directly enforceable without changing the constitution to refuse to give up a senate seat would become a willful violation of parliamentary convention to observe the democratic will of the people.

This is how it might work: Parliament passes a law that basically states the "PM shall ASK A SENATOR TO RESIGN after 'x' years of service". Nothing there says "a senator MUST RESIGN" however it compels the PM to do the asking, and puts the senator in a position where he or she would have to follow convention or face setting off a firestorm. Might sound silly, but that is exactly how it works with elections: Right up to the maximum 5 year term, if the PM decides to dissolve early, or gov't falls on a confidence motion as it did last year, the established procedure is for the PM to meet with the GG and ASK her to dissolve parliament and drop the electoral writ. Strictly speaking, she can refuse and order the sitting MPs to re-establish a cabinet and select a new PM (ore reconfirm the selection of the existing one), right up to the end of the 5 year term. Technically she could've refused to let Cretien call an early election and could've refused Martin an election and ordered Harper to try to establish a coalition govt (which would've been a crazy decision sgiven the makeup of parliament in that day).

Sounds like "cheating" or "bypassing the process"? Well, I think it's about time that a politician had the political will to finally address institutional reform in some way. If the Liberals TRULY believed in addressing the "democratic defecit" and TRULY believed senate reform would be an involved constitutional amendment process they'd have had the guts to actually DO it. The last time there was any real political will was when Mulroney was PM, which is sad given how arrogant he was. Whatever your opinion on his politics at least he had the guts to try to exercise the amendment process--TWICE--to do what he believed had to be done.

It's pretty sad picture for the Liberals when they look bad against MULRONEY ain't it?

[jdobbin]

It's pretty sad picture for the Liberals when they look bad against MULRONEY ain't it?

Since the Liberals have not even seen the possible legislation for this, how is it possible to for them to look bad on it. The only thing Harper did was address the Senate and that is not where the legislation can be initiated from anyways.

[Ricki Bobbi]

Since the Liberals have not even seen the possible legislation for this, how is it possible to for them to look bad on it. The only thing Harper did was address the Senate and that is not where the legislation can be initiated from anyways.

I'll make it simple for you jdobbin.

MSH wasn't referring to the legislation when he mentioned Mulroney making the Liberals look bad.

He was talking about Mulroney's attempts to address the democratice deficit (not a term in common use in Mulroney's day) by attempting to change the constitution.

The Liberals never had the political courage to attempt to change the consitution despite 12+ years of majority governments. *AND* Martin never tried to address the democratic deficit in any meaningful way despite repeated pledges to do so. I guess you could say he dithered on that promise.