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Media Bites: We Can't Reform the Senate if We're Constitutionally Constipated

11/14/2013 08:27 EST | Updated 01/23/2014 06:58 EST

There's no sugarcoating it -- the process for amending the Canadian constitution is awful. The bar for making change is set so impossibly high (even the "easiest" amendments require the approval of seven provincial governments representing "at least 50 per cent of the population") Vancouver pundit Rafe Mair put it best when he dubbed the whole regime functionally "constipated."

Our amendment rules are so terrible, in fact, so poorly-written and caked with complex regulations designed to eliminate any hope of ever achieving any meaningful improvement to anything, we barely even know how to read some of them. And we're not talking about 18th century legalese here -- this stuff was written all of 30 years ago.

Take last winter, when the fleeting possibility that Prince William's comely wife might sire a female heir inspired the British government to overturn centuries of sexist precedent. With an oxymoronic nod to "modernizing the monarchy," London pre-emptively passed a law allowing this theoretical first-born princess to theoretically ascend to the British Throne some theoretical day, even if she eventually had theoretical brothers -- a scenario previously forbidden. Every Commonwealth country sharing the monarchy was ordered to follow suit.

Cue the convulsions from Canada's leal establishment.

Canadian constitutional clause V-41, after all, says any reform "in relation" to "the office of the Queen" requires the unanimous approval of all provincial legislatures. Does changing the rules of the hereditary selection process for filling that office count as something "in relation?" For a while, the nation's editorial pages yammered back-and-forth about that, but then the Harper government just ploughed ahead and unilaterally copy-pasted the British reforms into Canadian law.

The Quebec government whined that Harper "didn't comply with the rules." Two Quebec law professors sued. But there was no closure. As far as I know, the courts still haven't clarified what "the office of the Queen" even means, let alone outlined the correct process for constitutionally modifying it. Considering polls routinely indicate a large chunk of Canadians favour turfing the Queen's office altogether, this is the sort of thing we should probably figure out.

The constitutional quagmire of the Crown is nothing compared to the swamp of the Senate, however.

Around the same time as the princess controversy, Harper's minister of democratic reform submitted a list of questions about the Senate to the Supreme Court of Canada, desperately hoping its justices could explain what, exactly the federal government can do to improve Parliament's ghastly upper chamber without going through the full-bore, designed-to-fail constitutional amendment process. Could we hold federal elections for Senators? Impose term limits? How about abolishing the stupid thing altogether, could we do that?

Hell nointerrupt the provinces. In what's truly one of the most underreported outrages of contemporary Canadian politics, all provincial governments across this country -- save Alberta and Saskatchewan -- are taking rigidly obstructionist positions against the Prime Minister's Senate reform agenda for a variety of self-serving reasons that basically boil down to: "Because we can."

All have dispatched lawyers to Ottawa to argue against any sort of Senate improvements achieved through anything less than a full constitutional amendment bearing unanimous provincial consent.

What's their case? Well, without getting into too much sleep-inducing legalese, constitutional clause V-41 -- the section that arbitrarily makes some parts of our government harder to alter than others (for instance, the aforementioned "office of the Queen") -- says all provincial governments must unanimously consent to any law that might change the process of amending the constitution itself. And since any constitutional amendment begins life as a regular federal bill that must pass both House and Senate in traditional fashion, the claim is that by changing (or abolishing) one of the bodies that has to approve an amendment, you're ipso facto changing the amending process.

This petty provincial intransigence, write U of T legal scholars David Schneiderman and Matthew Burns in Wednesday's National Post, is a "recipe for deadlock" and a surefire way to ensure "the maintenance of an appointment regime supported by only 8 per cent of Canadians." As in, a Senate comprised of whatever random party bagmen and out-of-work gameshow hosts the PM sees fit to cram in. So good work provincial governments! By jealously guarding your stupid powers you're bravely torpedoing any lingering hope that "that governments in Canada are entitled to experiment, for good or for ill, with poorly performing political institutions without having to run into constitutional gridlock."

The Ottawa Citizen editorial board, meanwhile, sees a test looming for the PM in the plausible event the Supremes decide to echo the foreboding recent opinion of the Quebec Court of Appeals, and rule the unilateral imposition of Senate elections and term limits unconstitutional.

Will a scorned Harper proceed to "engage the provinces and find a compromise" to achieve Senate reform, a la Brian Mulroney circa Meech Lake and Charlottetown? Or will the Prime Minister simply "turn the issue into a political football," and blast -- as he did at the Tory convention earlier this month -- the activist judiciary for blocking his ability to fulfill a major campaign promise?

Political and legal wrangling aside, however, it's important to not lose track of the ugly core of this story.

Canada has a deeply flawed constitution in which the most overdue reforms of its most brazenly flawed institutions are subject to the veto of an even more flawed amendment process. And it's looking increasingly likely, by the time the Senate reform smoke clears and new, restrictive legal precedents are established, we'll have somehow made the situation even worse.

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