The fact that the structure of the Canadian government, including Parliament and the Senate, is firmly outlined in the Constitution is a fairly obvious fact. Changing the nature of government by reforming or abolishing the Senate, as desirable as it may be, should be a difficult process, overseen by checks and balances in the Constitution, and requiring ratification by all of the provinces. This is the case now and was always the case when we were overseen by the BNA Act in London. Radical government change should be a slow and deliberate process which involves all effected parties.
So why did the current government of Harper’s Conservatives (as that is apparently what they like to be called) approach the Supreme Court of Canada with questions about reforming the Senate? They had to know what the answers would be.
That question is just one of several that might be raised regarding the current government’s relations with the Judicial Branch of Canadian Government. I can only think of two reasons why the Harper government would bother with this.
1. They don’t really know how the Constitution works.
2. They wanted to deflect attention away from the current Senate scandals, their promises to not appoint new Senators (which they completely ignored), and the affirmative action taken by the Liberals to actually distance themselves from Senators. By putting the question to the Supreme Court they are then able to say, “See, we tried and they wouldn’t let us.”
The Conservatives (and likely any other party as well) are terrified of reopening the Constitution to try for meaningful change. To do so would create a situation where provinces would be trying to claw their way into the Constitution on behalf of their various agendas, …the most obvious province being Quebec, but the others would get into the act as well. Alberta has a few things on their agenda list. So, it’s not going to happen, and the Conservatives knew that it wasn’t going to happen.
After the Supreme Court ruling the Conservative response has been to turn their backs with some indignation and walk away. Just enough tantrum to make that point that they’re “frustrated” that the Court doesn’t want to play ball with them. The PMO then turns around and bashes the Chief Justice of the Supreme Court, claiming that Beverley McLachlin was unprofessional in her dealing with the issue of Nadon’s appointment to the Court. This, by the way, stems from an incident close to a year ago where McLachlin telephoned the Justice Minister to point out some legal issues that would likely arise from the proposed appointment. Harper’s accusation not only suggested that the phone call was after the appointment, but also intimated that the call was to him rather than the Justice Minister. Regardless, the feeling in the legal community (whose opinions should carry some weight in such a matter) is that the whole thing is a tempest in a tea pot, hardly worthy of the kind of condemnation that Harper directed towards McLachlin. And, as I said, this is all a year after the fact, interestingly following directly upon the Senate questions rulings.
Having been denied the right to act unilaterally, Harper lashes back, takes his ball and storms away. It is reminiscent of Putin’s vain reaction after being snubbed at the Olympics by world leaders. Putin annexes the Crimea. Harper tries to annex the judicial system.