Harper’s Senate problem: From the public and the courts

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To say that Harper has a Senate problem is rather like saying that Walter White, from the hugely popular TV show Breaking Bad, has a crystal-meth problem. That is to say, that it understates the severity of the situation to a ridiculous degree. The Federal Conservatives and the Prime Minister, in particular, have been in full crisis mode since the Members of Parliament returned from their extended summer recess last week.

Their problems are caused by two separate but intertwined issues. Both touch on the legitimacy of the unelected, unaccountable and scandal-prone institution that is occasionally referred to as the upper-house of sober second thought.

The first has to do with the growing uproar of fraudulent expense claims made by three Harper appointees (read cronies) and one Chretien era Liberal (Mac Harb) who has since retired. The second problem is on account of a half-assed bill ( C-7) that is designed to reform the Senate by introducing two measures that might make the body slightly less undemocratic by allowing willing provinces to elect their Senators and limit their term in office to nine years. The latter may be overshadowed by the sexier Duffy-gate (apologies for the lazy Watergate reference) but is arguably more important, constitutionally speaking.

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Duffy, Wallin and, to a lesser extent, Brazeau have all pushed back against Harper’s attempts to throw them under the bus, mainly from the Senate floor or in the media. First the “Honourable” Mike Duffy lashed out at his former political masters with a series of shocking revelations about how personally involved Harper was in the damage control strategy that appears to have been cooked up by his then Chief of Staff Nigel Wright.

The Prime Minister vehemently denies this charge, suggesting instead that he had no knowledge of the $90 000 bailout for Duffy arranged by his former lawyer Benjamin Perrin and Mr. Wright. Harper also claims that he never read Mr. Duffy the riot act nor did he threaten to expel him from the caucus if he didn’t resign first. Duffman only left the party because Harper’s former staffer Ray Novak and former Senate majority leader Ms. LeBreton leaned on him and let him know he’d get the boot if he didn’t fall on his own sword publicly.

Senator Pam Wallin also refuses to go out like a punk. She alleges that former Tory colleagues, senators LeBreton and Carolyn Stewart Olsen, acting on behalf of the PM, orchestrated a campaign of leaks and the Senate Internal Economy Committee report (the body tasked with investigating Wallin’s expenses) was designed to tarnish her good name and intimidate her into complying with Harper’s wishes. She has since resigned from Conservative caucus but denies any fraud, claiming that she made an honest mistake in filing her expense claims. Wallin’s only crime: in her words, she was simply being an “activist senator” (note: the term activist mean something completely different in the over-privileged world of the Senate).

In the meantime, Harper’s feeble attempt at Senate reform appears to be going down the tubes. Last year, the Charest government submitted a reference to the Quebec Court of Appeals (the highest court in the province) in response to the Federal government’s attempts to change the Senate through the back door (a.k.a Bill C-7). Last Thursday, the Quebec court ruled Harper’s move unconstitutional.

The gist of the Court’s legal smack down is that the Feds are obliged to consult the provinces on a matter as important this and cannot make a substantive change to the constitution by means of a simple federal statute. Finally, any such process would be subject to the dreaded 7/50 formula found in section 38 (1) (B) which requires seven provinces representing at least 50 % of the Federation to ratify any proposed changes.

As the court said in its opinion, “they (the Feds) cannot circumvent it on the pretext that the constitutional amending process is complex or demanding.” This may not be the kibosh on Harpers plans, but when the Supreme Court of Canada hears the matter in Mid-November, the Quebec decision will definitely carry a lot of weight, and make it even harder for the justices to find in favour of the Federal government’s position.

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