Who's on "constitutional thin ice"!

Dear Professor & Ottawa Citizen,

RE: Harper is headed for constitutional thin ice

Thank you for the summary of purposely-perpetuated dis-information and commonly-held misconceptions regarding the Senate of Canada. Unfortunately it's based on mostly-wrong premises and interpretations, save the 7-50 amendment aspects.

If your readers can grasp what is "true" in this letter, "what never made sense in their own minds" or "what never was successfully explained" then perhaps we all will eventually thank Mr Harper for re-introducing discussion on the priority, hierarchy, purpose and structure of the Superior House within our Constitutional-Monarchy's Legislative power.

As an ordinary Canadian who has "translated the BNA/Constitution Act 1867 into Plain Language", I hope to offer the as-written text and a plain-as-the-nose-on-your-face accurate interpretation of our foundational document's clauses re: the Upper House, as a contrast to the accepted-but-incorrect views published on June 3/11.

My hope is to help stimulate a debate by other ordinary Canadians on how we were able to be led so far off the 'as-written and still-valid' track by our leaders and the law/education professional class.

Yes, Prof Mckenna is correct - this whole 2011 Senate Re-form exercise is a sham -- the "7/50" s.38(1) amending formula prevails.

The Rt Hon PM is just waving the Reform's "The West Wants In (or else)" flag for/at the faithful old timers back home, albeit fluttering it disdainfully and with no hope for success.
--and of course, he's using it as a distraction/diversion-of-attention!

The question remains, if Peter McKenna is wrong, but, everybody THINKS he's right ..... DOES ANYONE know what the BNA/Constitution actually says on the matter?

Further and far more important, if the de jure BNA text describes a situation far-different from the de facto - what prevails? (rhetorical)

If we're not following the "as-written text" .... what 'rules of engagement' ARE we following?

NB It's similar in principle to the UK .... that means it IS different!

A few specifics.

1) Originally, one of the primary functions of the Senate was to represent the interests of the provinces or the regions in Ottawa.

No. The purpose of Upper House styled Senate was to be a House of Lords in a land with no Lords.

It is based on the hierarchical structure of the Constitutional Act of 1791 (Crown-in-Council, Governor, Executive Council, Legislative Council, Legislative Assembly). see attached Evolution of Governance Chart

The Senate Members' Property-ownership & Net-Worth disqualifications of s.31, qualifications of s.23 and their special oath in the Fifth Schedule clearly show the office was to be filled with what we'd now call "Taxpayers" - no income tax existed in 1867, just property tax, excise & customs revenue.

The Lower house was for the Plebeians, the Upper House for the Patricians - the Senate was for the "Upper Class" to be selected equally from the 3 (now 4) 'Divisions' (now regions)

It's the ONLY office in Canada with a Property-ownership & Net-Worth prerequisite - lost to inflation .... $4,000 just ain't what it used to be. Learned folks say it should be 60x ($240,000) or 80x ($320,000) - not a stupendously high threshold ... but remember, it is a "net" amount.

2) Other premiers, like Darrell Dexter of Nova Scotia and Dalton McGuinty of Ontario, have supported the outright abolition of the Senate.

Foolish drivel -- 7/50 amendment again.

These Premiers too, lack understanding of the true purpose of the Senate (they too think the Upper House reps the Provinces vis a vis representing the "taxpaying class") and therefore fear that the Senate could undermine their position as 'elected-monarch' of their sorta-sovereign fiefdoms. That's what the ss.91-92 (plus 92a thru 95) Distribution of Legislative Powers PART IV is all about.

HOWEVER, quite separately, Mr Layton objects because he's a Unionist/Corporatist, social-democrat. How can his ilk (representing the plebes) "take over" if a permanent, wealth-based, super-structure exists above the Lower House of assembly?

3) There are other potential problems: can you have an elected Senate without a corresponding increase in powers and responsibilities for that body (or acting authoritatively with its traditional powers)?

The Power of the Senate as a hierarchical, senior-partner in the Legislative Power triumvirate s.17 is clear - it's mandate and place within the "power-sharing agreement" has simply become obscured by time, nescience and the patronage appointments described by Professor McKenna - appointments (of "unqualified-if-inflation-adjusted" hacks) that were intended to control the subsequent votes/ loyalty of the grateful new Upper House members.

 

4) But if you enhance the powers of Senators, which chamber of Parliament would take precedence when the inevitable legislative stalemate occurs?

Remember the GST Senators? s.26 allows the s.12 Governor General (i.e. NOT the s.13 Governor General In Council) to appoint more Upper Class/ Patricians to break the tie. - Wonderfully prescient those 1867 Charlottetown/Quebec/London folks!

5) send the proposed legislation to the Supreme Court as a reference matter to test its constitutionality. That way, any potential provincial blowback could be cut off at the knees -presuming, of course, that the court rules in favour of the federal government's unilateralism.

No question of Constitutionality ... it's just not being followed -- I encourage the reference case and look forward to the (unexpected) blowback!

6) So expect the governing Conservatives to go fullsteam ahead with Senate reform and pay little heed to constitutional challenges

Expect nothing but self-aggrandizement. On the PM's part, on the part of tenured and scholarly constitutional "legal experts" (think how much of their writing and pontificating they'd have to "undo"), the political backroom-player's part and even the Supreme Court's members' part (how much "wrong" they've allowed by avoiding the issue).

But now you know. You now know you've been deceived for your whole lifetime by every political science writer, teacher, prof, friend who has ever explained to you the Canadian Governance system

The Senate IS screwed up, but the real problem is with a neutered Governor General (widely-considered just another anachronism) and His/Her subsumed/stolen stable of appointed-for-life, independent advisors -- the Queen's Privy Council for Canada!!

The pivotal point EVERYONE'S missing is the usurpation of the CLEARLY superior Executive Power (ss.9-16) by the Legislative Power's Lower House's 50%+1 majority (with less than 40% support) Gang-Leader's office - ask me about Wm L M King's Order in Council P.C. 1940-1121 that accomplished this manoeuvre under cover of war while their was no GG!

With hope,

rce