That Senate reform bill: alive in the water

By Colby Cosh - Wednesday, June 22, 2011 at 5:25 AM - 0 Comments

In a recent dead-tree Maclean’s I gave a little preview of the constitutional issues that the government’s piecemeal Senate reform effort, now launched, will raise if it is brought before a court. Readers may not be aware that the nature of Senate elections was discussed very recently in the Senate itself—in March, when a Senatorial Selection Act (S-8) was briefly debated there. The provisions of that bill have now been incorporated into a schedule to House of Commons Bill C-7.

Today’s Star has a piece from Susan Delacourt in which scholarly all-rounder Ned Franks calls Senate elections “dead in the water” and “sure to get shot down by the Supreme Court”. I don’t want to call this a misrepresentation of the expert consensus, nor to challenge the stature of Ned Franks, but it seems to me that few other opponents of Senate elections are as confident as these quotes suggest. As I wrote, it is not clear exactly how much change Parliament is free to make to constitutional arrangements by statute alone. The Constitution Act text says that the 7/50 amending formula has to be followed before “the powers of the Senate and the method of selecting Senators” are changed. But under C-7, Senators are explicitly still appointed by the Governor-General as before. (“Senators to be appointed for a province or territory should be chosen from a list of Senate nominees submitted by the government of the province or territory.”)

Indeed, the flow of moral force through the text of the bill shows amusing evidence of judiciary-proofing. Look at section 2 of C-7:

2. The framework in the schedule sets out a basis for the selection of Senate nominees.

Key phrase, for the purpose of a future court test: “Senate nominees”, as opposed to Senators. The message to the courts is that we are not creating a formally elected Senate, but merely a means of bringing “nominees” to the attention of the Prime Minister. It’s an important distinction, also observed in s.3 of the bill:

3. If a province or territory has enacted legislation that is substantially in accordance with the framework set out in the schedule, the Prime Minister, in recommending Senate nominees to the Governor General, must consider names from the most current list of Senate nominees selected for that province or territory.

Key phrase: “must consider”, as opposed to “must accept” or “must recommend”. The bill is carefully keeping its toes within the boundaries set out by Peter Hogg in a discussion of a still earlier, failed Conservative reform bill:

…right now the Prime Minister could, if he wished, commission an informal poll as to the wishes of the electorate with respect to an appointment from a particular province. The Prime Minister could right now, and in fact has done, respect the choice of the electorate expressed in a provincial election, as we know has been done in respect of appointments from Alberta, where those elections have been held.

So all Bill C-20 does is make a formal consultation process available to the Prime Minister, should he choose to take advantage of it. As you will know, the Prime Minister does not need to take advantage of the consultation process if he doesn’t want to; the bill leaves that as a matter of discretion in the Governor in Council. If the Prime Minister does order the formal consultation process to take place, he does not have to respect the results in making recommendations for appointments.

I fully recognize… obviously a court would recognize that after Parliament has established the complicated process proposed by Bill C-20, no Prime Minister is likely to continue to make appointments in the old way. But I say that is a truth of politics, not a truth of law.

As crafty as those concluding words sound, I do not see how Hogg’s logic is assailable. I’m not an advocate of Senate elections per se. But Franks-style constitutional opposition to Senate reform requires acceptance of an absurdity: that otherwise qualified candidates for the upper house somehow become morally ineligible if they happen to have won a vote. The Constitution can and does stop people from entering the Senate solely by virtue of election. I don’t see how it can thwart a scheme for holding advisory elections that are binding only by virtue of the common regard in which we hold procedurally fair expressions of democratic sentiment.

A non-binding, voluntary basis for encouragement to consider fundamental change

By Aaron Wherry - Tuesday, June 21, 2011 at 12:07 PM - 66 Comments

The government has now tabled its Senate Reform Act.

It would not require provinces and territories to implement consultation processes but would strongly encourage them to do so. It also demonstrates support for those provinces that have already undertaken legislation to establish such democratic processes. 

The Act includes a voluntary schedule, based on Alberta’s Senatorial Selection Act, which would set out a basis for provinces to enact democratic processes. 

The Act would not be binding on the Prime Minister or the Governor General when making appointments to the Senate.  However, it would require the Prime Minister to consider the recommended names from a list of elected Senate nominees when recommending Senate appointments. 

'A contempt of Parliament'

By Aaron Wherry - Friday, June 3, 2011 at 11:09 PM - 166 Comments

A statement this evening from the office of the Speaker of the Senate.

The Honourable Noël A. Kinsella, Speaker of the Senate deplores the actions of a page, which constituted a contempt of Parliament, during the Opening of Parliament in the Senate Chamber today. 

All employees of the Senate are expected to serve the institution in a non-partisan manner, with competence, excellence, efficiency and objectivity.

The Senate has terminated the employee’s contract effective immediately for breaching the terms and conditions of employment. The incident raises serious security concerns which the Senate will fully investigate.

The Speaker of the Senate expresses to His Excellency the Governor General the apology of the Chamber for any embarrassment this incident may have caused.

Evan Solomon interviews Brigette DePape. Jason Kenney deems Ms. DePape a “lefty kook.” CP has reaction from Carolyn Bennett, Justin Trudeau and Senator Pierre Claude Nolin. Comments from Bob Rae and Elizabeth May after the jump. Continue…

A speech fit for a throne

By Aaron Wherry - Friday, June 3, 2011 at 3:14 PM - 3 Comments

The text of the Speech from the Throne can be dutifully read here.

It is entitled “Here for all Canadians,” presumably to reassure those who found “Here for Canada” insufficiently inclusive.

Hypotheticals

By Aaron Wherry - Saturday, April 30, 2011 at 1:05 PM - 53 Comments

Stephen Harper doesn’t want to get into certain hypotheticals.

The Conservative leader was asked today whether he would accept the decision of the Governor General should a minority Conservative government again lose the confidence of the Commons and the next-biggest party was asked to form government.

“I’m not going to speculate on hypotheticals; we’re in this to win, I believe we’re going to win; a lot is at stake, every race is close,” Harper said at a morning news conference inside an auto repair shop. ”What we’re doing now is speculating on hypothetical scenarios. We’re putting before Canadians the choice that they have, a Conservative government that will keep taxes low and keep the economy moving forward, or an NDP government that will raise taxes, stall our recovery, and set Canadian families back.”

The partisan crowd apparently booed and heckled the CBC reporter who insisted on pressing the matter.

Advising the Governor General

By Aaron Wherry - Friday, April 29, 2011 at 2:30 PM - 36 Comments

Ekos asks what should happen if a minority government is defeated soon after the next election.

The EKOS-iPolitics survey finds two-in-five Canadians – 43 per cent – think the governor general should call on the leader of the Official Opposition to form a new government if the next prime minister’s party is immediately defeated. Only 19 per cent of Canadians think another election should be called. The remaining 38 per cent either had no opinion or refused to respond.

Leger asks a similar question and gets a similar response.

What say the Governor General?

By Aaron Wherry - Wednesday, April 20, 2011 at 11:19 AM - 28 Comments

Nicholas A. MacDonald and James W.J. Bowden argue that the Governor General should not refuse a request to prorogue Parliament.

This paper does not intend to ignore or gloss over the way that the prorogations of 1873 and 2008 unfolded in reality; clearly the majority of the political actors – certainly Lord Dufferin and Michaelle Jean themselves – believed that the Office of the Governor General possessed the reserve power to accept or reject the prime minister’s request. But based on the available evidence, we can only conclude that the governor general’s reserve power ought not to apply to prorogation.

Two questions for Stephen Harper (III)

By Aaron Wherry - Wednesday, April 20, 2011 at 10:10 AM - 50 Comments

After interviewing Mr. Layton and Mr. Ignatieff, Peter Mansbridge will sit down with Mr. Harper on Thursday. Assuming that the parameters of our democracy might be a topic raised, here, again, are two questions for Mr. Harper.

1. Earlier in this campaign, you explained that when you referred to “options” in the your letter to the Governor General in September 2004, you hoped only that she would give you the opportunity to assure her that you were not intending to defeat the Liberal government. University of New Brunswick professor Don Desserud has quibbled with this understanding of convention, suggesting the only options for the Governor General would have been to call an election or ask the leader of the opposition, in this case you, if he had the opportunity to form a government. Do you believe the Governor General can compel the Prime Minister to work with the opposition parties or do you believe you were given poor advice in 2004?

2. In an essay penned with Tom Flanagan some years ago you spoke favourably of an “alliance” between regional parties and lamented for the “winner-take-all style of politics” in Canada. In 1997, during an interview with TVO, you said if the Liberal majority government of the day was ever reduced to a minority government, there would be an opportunity for one of the other parties “to form a coalition or working alliance with the others.” In 2004, during your news conference with Mr. Duceppe and Mr. Layton, you were asked if you were prepared to form government and said such a scenario was “extremely hypothetical.” You and your party now argue that only the party that wins the most seats can form government. Why and when did your views change on the functioning of our parliamentary system?

Governor-General cleared over $1-million in salary in 2010

By macleans.ca - Thursday, March 31, 2011 at 8:30 PM - 19 Comments

Governor-General David Johnston made over $1-million dollars as president and vice-chancellor of the University of Waterloo, making him the second highest paid public sector worker in Ontario. All told, Mr. Johnston made $1,056,813 in salary and bonuses in 2010. Tom Mitchell, President and CEO of Ontario Power Generation, topped the list, making $1,335,000 last year. The Ontario Government’s ‘Public Sector Salary Disclosure’ list contains the names and salaries of 71,478 public sector workers in the province making at least $100,000.

The Globe and Mail

Stephen Harper and constitutional convention

By Aaron Wherry - Tuesday, March 29, 2011 at 9:48 AM - 54 Comments

Tom Flanagan, a former advisor to Mr. Harper, is asked for his opinion on the 2004 gambit.

Asked if Mr. Harper might have had a different motivation for sending the letter to Ms. Clarkson — one other than ensuring that she explored the option of Conservative-led minority if Martin’s government fell — Mr. Flanagan replied: “I can’t see what other point there would have been in writing the letter except to remind everybody that it was possible to change the government in that set of circumstances without an election.”

Meanwhile, John Geddes talks to Don Desserud, who finds Mr. Harper’s understanding of convention to be “odd.”

Harper's version

By Aaron Wherry - Monday, March 28, 2011 at 3:17 PM - 88 Comments

Though it’s not reported exactly what question was put to him, Stephen Harper seems to have explained this morning what he meant when he asked Adrienne Clarkson in 2004 to consider her “options.”

“What was the option? The option was very clear. It’s the option we did. Which was as opposition leader I was seeking to put pressure on the government to influence its agenda without bringing it down, without defeating it and replacing it.”

Harper said that at the time, Martin was saying that any change in government policy, no matter how small, would be treated as a confidence measure and he would go to the governor general. “My position was if he did that the governor general should come to us. I would have told the governor general we in fact are not trying to bring the government down. All Mr. Martin has to do is sit down and talk with us. And I’m sure we will find a resolution.”

This, though it would seem to involve dabbling with the confidence convention, is similar to what Mr. Harper said when asked in 2004 about the letter to the governor general and whether he was interested in forming government. Except that at that time, he described the possibility of forming government as “extremely hypothetical.” Both Jack Layton and Gilles Duceppe maintain Mr. Harper was interested in the possibility of forming government at the time, despite being one of the “losers” of the 2004 election.

Nonetheless, if this answers the first of those two questions for Mr. Harper, that leaves only the second in need of a response.

Two questions for Stephen Harper

By Aaron Wherry - Sunday, March 27, 2011 at 9:00 AM - 60 Comments

In light of all this confusion surrounding Mr. Harper’s previous practice and present stance on parliamentary cooperation, there are perhaps two questions that might (need?) be asked of the Conservative leader for the sake of clarification.

1. What “options” did you intend the Governor General to consider when you, along with Mr. Duceppe and Mr. Layton, wrote to her in September 2004?

2. In 1997, you said if the Liberal majority government of the day was ever reduced to a minority government, there would be an opportunity for one of the other parties “to form a coalition or working alliance with the others.” In 2004, during your news conference with Mr. Duceppe and Mr. Layton, you were asked if you were prepared to form government and said such a scenario was “extremely hypothetical.” You and your party now argue that only the party that wins the most seats can form government. Why and when did your views change on the functioning of our parliamentary system?

'We will choose between stable national government and a reckless coalition'

By Aaron Wherry - Saturday, March 26, 2011 at 10:23 AM - 16 Comments

The prepared text of the Prime Minister’s statement outside Rideau Hall this morning.

“Good morning.

“In light of yesterday’s disappointing events I met with His Excellency the Governor General, and he has agreed that Parliament should be dissolved.

“Before I say anything else, I would like to begin by thanking Canadians for the confidence and trust they have given me and my colleagues over the past five years.

“It has been a privilege and honour to serve as Prime Minister of the best country in the world as together we faced the most difficult days of the global economic recession.

“At the same time, because of the great challenges that still confront us I understand that our job is not done.

Continue…

'The only course of action that remains'

By Aaron Wherry - Friday, March 25, 2011 at 3:45 PM - 119 Comments

The Prime Minister’s statement to reporters after his government was defeated in the House.

Good afternoon.  I’ll be brief.  The global economy is still fragile.  Canada’s recovery has been strong but it needs to remain our focus. That’s why the economy has been and will continue to be the number one priority for me as Prime Minister and for all the members of our Conservative government.  This is what Canadians expect of us in Parliament, all of us.

Continue…

What was Stephen Harper up to in 2004?

By Aaron Wherry - Thursday, March 24, 2011 at 9:01 AM - 230 Comments

In response to the charge yesterday during Question Period that the Harper government had shown contempt for democracy, John Baird offered the following.

Mr. Speaker, it is the leader of the Liberal Party who is showing contempt for Canadian voters. He does not accept the fundamental democratic principle that the person with the most votes wins elections. He wanted to establish a coalition government with the Bloc Québécois and the NDP and now the coalition is back again. That shows utter contempt for Canadians.

Mr. Baird’s invoking of fundamental democratic principles was particularly noteworthy in light of what Jack Layton and Gilles Duceppe had said two hours earlier in their respective news conferences. Continue…

What was Stephen Harper thinking in 2004?

By Aaron Wherry - Thursday, January 20, 2011 at 9:01 AM - 59 Comments

On September 9, 2004—two and a half months after that year’s federal election—Stephen Harper appeared at a news conference alongside Bloc leader Gilles Duceppe and NDP leader Jack Layton to announce what Mr. Harper would describe as a “co-opposition” agreement. The three presented a series of reforms intended to give the opposition parties more power in Parliament as Paul Martin prepared to lead Canada’s first minority government in more than two decades.

Mr. Harper, Mr. Duceppe and Mr. Layton had also sent a letter to the Governor General—Adrienne Clarkson at the time—to suggest that, should Mr. Martin seek to dissolve Parliament, she should “consult” with the three opposition leaders and consider her “options” before exercising her authority.

Below you will find an audio recording of that September 2004 news conference in its entirety.

At the 11:20 mark, the three opposition leaders are first asked to explain their request that the Governor General consult with them—specifically whether they are prepared to form a government. Continue…

How late is too late?

By Aaron Wherry - Tuesday, January 18, 2011 at 8:53 AM - 74 Comments

At the risk of dwelling upon the Prime Minister’s words, it is probably worth noting all of the questions raised by Mr. Harper’s offhand remark last week about the December 2008 coalition—questions that might be asked of Mr. Harper and probably should be asked of the Governor General.

First, a useful reminder of events. The 2008 election occurred on October 14. On November 19, the House reconvened and the Throne Speech was presented. Eight days later, on November 27, the government presented its economic update. Shortly after, the Throne Speech passed the House.

On the evening of November 28, with that update facing mounting criticism, the Prime Minister announced that an opposition day scheduled for December 1, the following Monday, would be pushed back a week—thereby postponing a vote of non-confidence the Liberals intended to bring.

On December 1, the coalition accord was signed and Stephane Dion sent a letter to Michaelle Jean informing her of his ability to form a government. Three days later, on December 4, the Prime Minister asked the Governor General to prorogue Parliament and she granted his request.

All of which makes the Prime Minister’s contention that the opposition parties “waited too long” and were thus “too late,” all the more curious. Continue…

The guardian of our democracy

By Aaron Wherry - Tuesday, January 4, 2011 at 11:29 AM - 266 Comments

Just before Christmas, Governor General David Johnston made an apparently caveat-free statement on the possibility of coalition government in a parliamentary system.

Johnston said Canada — like many democratic regimes — has had experiences with coalition-type governments in the past. “I think that most jurisdictions that have a system of first-past-the-post or proportional representation will from time to have time have coalitions or amalgamation of different parties and that’s the way democracy sorts itself out,” he said.

The Prime Minister has quibbled with the concept of coalition government on three counts. And as such there are three questions Mr. Johnston should be asked at the next opportunity. Continue…

A touch of class

By Cathy Gulli - Thursday, December 9, 2010 at 4:20 PM - 0 Comments

Master Cpl. Pinchin; Myron and Berna Garron | Chris Wattie/Reuters; Keith Beaty/Toronto Star/Getstock

Under enemy fire
The Governor General presented one Canadian soldier this year with a Star of Military Valour, the second-highest award honouring heroic actions in the battlefield. Master Cpl. Jeremy Pinchin received his medal in June, more than two years after he came under enemy fire in Afghanistan. It was late fall when he and his sniper detachment took position on a remote rooftop in Zhari District to protect the southern flank of a Canadian-Afghan patrol. Suddenly, they were “attacked and outnumbered by a well-coordinated group of insurgents,” according to a summary of events. A comrade fell, badly wounded. Rather than leave him, Pinchin treated his fellow soldier—and used his own armoured body as a shield.

Pulled from the fire
It was the middle of the night when Saint John, N.B., taxi driver Sonny Trenholm, 67, headed into a gas station for a snack. As he rounded the corner, Trenholm saw an SUV rolled over on the driver’s side—and heard a woman, trapped inside, screaming, “I’m on fire!” He ran over, called 911, and yelled at her to kick the front windshield. The glass shattered, and he pulled the woman out, tore off her burning coat and hugged her. Rescue workers arrived, and Trenholm drove home—but got no sleep. “I thought she was going to die,” he said the next day. But she didn’t.

Continue…

What it was all about

By Aaron Wherry - Monday, December 6, 2010 at 5:04 PM - 0 Comments

For those not yet tired of my writing on her tenure, here are 750 words, penned for our year-end Newsmakers issue, on Michaelle Jean’s five years at Rideau Hall.

Michaëlle Jean: Nurturer-in-chief

By Aaron Wherry - Monday, December 6, 2010 at 12:00 PM - 14 Comments

Blair Gable/Reuters

One month before she left Rideau Hall, Michaëlle Jean visited Montreal north, the scene two years earlier of a police shooting and a subsequent night of rioting, to listen to the hopes and fears of the neighbourhood’s young people. She wanted to know what was happening and what might be done. She wanted to hear their ideas and solutions. She sat and listened as they variously explained, ranted and pleaded. And she called on them to move forward with the belief that together they could effect change.

Her five years were otherwise defined by so much else—from a constitutional crisis on Parliament Hill, a war in Afghanistan and her tears for Haiti to her fashion sense and hairstyle. Her selection to the vice-regal position was as scorned as it was heralded—her loyalty, and her husband’s, to the country were questioned even while she was celebrated as the personification of all that this country promised. In granting Stephen Harper a prorogation of Parliament when the government seemed set to topple, she presided over one of the most substantive decisions a governor general has ever made in this country. She comforted the families of fallen soldiers and donned a military uniform as commander-in-chief to salute  the troops. She sampled seal heart to demonstrate solidarity with the North.

Continue…

'Heroes in our midst'

By Irwin Cotler - Wednesday, November 10, 2010 at 9:00 AM - 0 Comments

Thomas Manuel (left) with David Johnston; Medal of Bravery | Adrian Wyld/CP/ Sgt Serge Gouin/Rideau Hall

While the media was suffused last week with the gruesome evidence of Russell Williams’s criminality, a remarkable and inspiring event took place in Ottawa. Although it went largely unreported in the mainstream national media, it represents—as someone fortunate to witness it first-hand—the best, and I would say authentic, face of Canada.

I am referring to the awarding of Canadian Bravery Decorations to those who risked their lives to save others, and in some instances even lost their own lives in the effort. People from across the country—ordinary Canadians who engaged in extraordinary acts of courage—were presented with decorations from newly installed Governor General David Johnston in the Rideau Hall ceremony.

In the words of the Governor General, “Behind every one of these beautiful medals is an amazing story. A story of a life saved, a family preserved, a community strengthened. Stories, too, of fear overcome, because bravery is not the absence of fear, it is the judgment that something else—and someone else—is more important than fear.” Regrettably, space constraints allow me to highlight the heroism of only some of the 53 persons honoured.

Continue…

On the perils of prorogation

By Andrew Coyne - Tuesday, October 12, 2010 at 9:00 AM - 0 Comments

Chris Wattie/Reuters

When is it legitimate for a prime minister to prorogue Parliament, and when is it not? At what point can we say a government has lost the confidence of the House of Commons? Suppose it has: what happens then?
These were just some of the questions at issue in the great prorogation crisis of December 2008. And at the heart, perhaps the most fundamental question of all: must a governor general always follow the advice of her prime minister?

The honest answer in every case is: don’t know. Or at best, it depends. For all its undoubted strengths, much of our Constitution remains unexplored territory, uncharted by law and untamed by precedent or jurisprudence.

For what it’s worth, my own answers to those questions would be as follows. It is ordinarily a perfectly legitimate exercise of his authority for a prime minister to prorogue, but the circumstances in which Stephen Harper sought to do so then—so soon after the House had returned, and in the shadow of an approaching confidence vote he seemed sure to lose—were far from ordinary.

Continue…

'What you see is what you get'

By Aaron Wherry - Monday, October 4, 2010 at 10:00 AM - 0 Comments

That fuller accounting of my conversation with the Governor General is now online.