The big move by the government yesterday was to send a list of reference questions to the Supreme Court with regards to Senate reform – and yes, abolition. The six questions – more like fifteen with the sub-clauses – come at a time when the notion is being mulled over by the Quebec courts at the behest of the provincial government, and the Supreme Court may opt to hold off on their deliberations until that decision is rendered, so that they can take it into consideration. And then comes the politics behind it all – the government claims this will “speed up” the reform process after years of opposition delay – never mind that this reference process could take up to two years, and the only ones stalling were the government themselves because they never brought their bills forward for debate (not that said bills were actually constitutionally sound). It also buys them time to keep the issue alive for the next election and as a fundraising issue for their base, but also provides them options when it comes to considering next steps, because they may need them if they want to continue this rather foolhardy pursuit. The Liberals are playing the smug game of “We wanted this reference six years ago – thanks for catching up.” And the NDP are accusing the government of “more delay” – even though they simply argue for abolition and give nonsense talking points about how much money they would save if that happened (forgetting of course that all of said “savings” and more would entirely be consumed in the interminable court challenges that would come from flawed legislation that would otherwise be caught in the Senate). And there are the legal arguments – is it really unconstitutional, or is the fact that the Prime Minister is still recommending appointments to the Governor General enough to avoid having to go the route of a constitutional amendment, no matter that they’re ensuring that these appointments are “elected,” and that the “democratic mandate” of these newly empowered Senators will have a tangible – and detrimental – effect on the way our system operates. I argue that the Supreme Court justices aren’t morons and will see a backdoor attempt for what it is and call bullshit. Other constitutional scholars aren’t so sure, and say that according to the letter of the law, it looks just fine. But politics – especially the way our Parliament operates – is more than just the letter of the law. It’s an organic whole, and surely that needs to be taken into consideration when a blatant backdoor proposal designed to get around doing the hard work of constitutional negotiation will have a serious and measurable effect on our democratic process. That has to count for something.
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