Triple E-E-Effrontery

Published in Edited Form

Senate is superior to House, not equal

Monday, 08/13/2012 12:00 am EDT

Dear Senator Brown,

cc Hill Times

I had the opportunity to speak with you on this same topic at the Calgary Congress in 2006, since then you have refined your argument for "provincial" empowerment within the Confederal/General Legislative Power (Constitution/BNA 1867ss.17-57) but continue to miss the quintessential point of Upper House reformation - perhaps the chaps/gals in the PMO/PCO who helped you with the drafting of this Op-Ed, haven't actually read the complete BNA/Constitution Act 1867 (or it's antecedents ranging back to 1763 + the Hudson's Bay Charter of 1670).

I am affronted by Triple-E proponents cherry-picking from the foundational provisions regarding the Upper House, styled Senate (I'll explain my repetitiveness below) AND taking these "picked" provisions out of context of the seamless-web that is our "similar in principle" fundamental governance blueprint.

But before I get to my reply to your less-than-the-whole-loaf of Constitutional 'facts' simultaneously taken piecemeal out of context .... may I suggest that you please refrain from attempting to establish credibility/support for your imperfect solution by quoting polling results. If you ask the "majority of Canadians" in typical polling style (see Yes Prime Minister's Grand Design snippet) whether they prefer "Higher taxation or Lower taxation" they will 95+% agree to the latter and if you ask them (professionally) whether they prefer "More gov't services for Less Money or Less Services for More$", I'd venture to say 99.44% would opt for the former - so again, please don't cite opinion poll results without the standard procedural disclosures on sample size, calculated margins of error, dates and modus operandi.

First remember that the Dominion of Canada is not a Democracy (where the source of Sovereignty and all legal Authority flows from the "demos") but a Constitutional-limited Monarchy where the source of Sovereignty flows from God to the Monarch, where legal Authority flows from the Monarch and has been delegated in part, to the BNA/Constitution 1867 Executive Power (ss.-9-16), in part to the 1867 Legislative Power and in part to the Provincial Executive and Legislative powers.

If Democracy means to you that everyone has a vote ... well I guess we have that ... our "Democratic Element" is in the House of Commoners but many Senators in 1867 felt quite differently that you on that issue:

* G.E. Cartier  -"to protect the regional interests and also a power of resistance to oppose the democratic element"

* Sir James Lougheed - a "bulwark against the clamour and caprice of the mob"

* Cicero (carved in oak frieze of the Senate Speaker's chambers) - "It is the duty of the nobles to oppose the fickleness of the multitude"

Which brings me to the first example of "cherry-picking" - why have you made no mention of the fact that Senators represent the 4 "Divisions of Canada" ( s.22) West, Ont, Que, Atlantic and that each provinces has had a quota of representation within its Division and not in its own right?

Second cherry-pick - why have you made no reference to the net-worth and net-equity land ownership qualifications/instant disqualifications of s. 23 & s.31? 

Third cherry-pick - why have you made not recommendation that the 1867 Dollar Value Amount ($4,000.00) of the Upper House Member's disqualifications/qualifications be adjusted-for-inflation? I think it's the only dollar amount in Canada that has not been indexed to CPI ... a pity eh?

Fourth cherry-pick - why have you not made to reference to the rationale BEHIND the $4000 net-worth and net-equity land ownership provisions?  Is it not true that in the absence of a landed gentry nor any "Lords Spiritual or Temporal" to populate our "similar in principle i.e. definitely with explicit differences" Upper House, the solution was to add the above-noted dollar-denominated qualifications/disqualifications (and a unique Oath of Allegiance for Senators - outlined on the Fifth Schedule - pls. note the "collusively or colourably obtained" wording) as a way of identifying minimum qualifications for Senators to be selected from from the "propertied class" of Canada who would be representing the interests of this same socio-economic "group" (EQUALLY from each of the 3 (now 4) Divisions -s.22) in the Upper House of our "One Parliament" (s.17) 

WHY WAS IT CALLED UPPER HOUSE (and the other place the LOWER HOUSE) if that terminology did not also convey some significance in the minds of the document's drafters both from here and over 'ome in the Imperial government? Simply stated, the power-sharing agreement in Canada is a top-down hierarchy:

 (An annotated Plain Language Version of 1867 may help)

EXECUTIVE POWER

Monarch in U.K Council (till 1982 when Lords and UK House withdrew, now just H.M. QE2, as an individual)

Gov Gen - Monarch's local rep subject to the Disallowance s.56

Privy Council for Canada  - advisors to GG (not PM)

LEGISLATIVE POWER

One Parliament with 3 parts

-GG as Monarch's rep/delegate - Assent, Withholding of Assent or Reservation powers ss. 54, 55, 57

-UPPER House of Assembly - Senate -Propertied class

-LOWER House of Assembly Commons - Everyone

PROVINCES

see section 63-66 for similar but different Executive and Legislative set-ups

PLUS see Section 90 - Confederal GG-in-Council can Disallow any provincial Bill with 1 year

SUMMARY

THE CONFEDERAL/GENERAL Gov't Executive Power is Superior to the Provinces' Executive Power (and their Legislative Power)

Any/all Provincial Legislation no mater the  Distribution of Legislative Powers (ss. 91 & 92) is subject to the GG-in-Council Disallowance Veto on EVERYTHING

The taxpaying, resident citizens of Canada are NOT recognized as part of the power-sharing agreement.

Political Parties have No place nor mention in the 1867 BNA.

The Prime Minister is NOT mentioned in 1867 BNA (yes the office is mentioned as a conference convener in Constitution 1982)

The Prime Minister does NOT control the Clerk of the Privy Council, the Privy Council NOR its Sub-c'ttees (Treasury Board etc)

The Prime Minister's Authority flows from the House (ie His/Her command of the confidence of 50%+1)

Fifth cherry pick -the provinces have joint-responsibility over Immigration and Agriculture (s 95).

The current day mish-mash of cannot-follow-the-money subsidies and regulations that we now call "Healthcare Funding" has absolutely nothing to do with the intentions, spirit or letter of (s 92(4)) "The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals".

Section 93's Education "province jurisdiction" with it's quaintly described Dissentient Schools et al, is absolutely over-ridden by 93(4) in ONTARIO at least, PLUS the biggest joke being s.93A that bilaterally amended the BNA (under 1982 rules Part V s 43) to allow this One province to switch from a two-religion based system to a two-language system

First wholly-errant assertion  that must be addressed and put to rest " ... component to the government (of the day)'s vision is a simple but powerful override process that will maintain the supremacy of the (Lower) House of Common(ers)" - surely (or do they still spell it shurely in Ottawa/Hull) anyone who has read this far now-knows that the premise of the assertion is anti-1867 and only furthers the Senate's de facto loss-of-power-and-legitimacy-in-favour-of-the-Commons that any Senator who proposes it must be "hopeless stupid or unfit for their Office" (H.C. Andersen, The Emperor's New Clothes ) or just completely unaware of the de jure content of Canada's fundamental law.

Second wholly off-base assertion - the same "gov't's vision" paragraph continues the "supremacy of the Current King" hogwash with some borrowed-and-bent bafflegab about a possible Senate veto of Lower House Legislation with 7/50, single-Senate-vote-per-provinces, not-a-confidence-vote, completely non-Canadian hockum that makes the 1840 Act Of Union's double majority provisions seem considerably more-simple and the Charlottetown Accord's proposed regional-based voting system almost understandable.

Third and last comment on the poor researching /fact-checking/ proofreading in the backrooms of the PMO's propaganda/ bread and circuses/ pap-for-public consumption department is that none of the 1982 (ss 38-48) Amending Formulae require the consent of the Office of Prime Minister - just the Upper and Lower Houses + the requisite % and of number of provincial legislature.

Forget the triple-E nonsense:

a) the Senate Is Superior to the Lower House, not its equal; 

b) the method of choosing-for-recommendation of future Senate Members, be it by  election, or any other method is to absolutely NO AVAIL unless you adjust-for-inflation the $4,000 qualification/disqualification standard and thereby re-establish the mandate of the Upper House as representatives of the class/group/order of Canadians who will be "paying the freight" for any and all legislative initiatives/reforms;

c) I want an effective Commons, an effective Senate, an effective Privy Council (including its vital supervisory sub-committees), an effective Prime Minister, effective MP's and most of all an effective, full Letters Patent of 1947-mandated Governor General .... but none of that will/can/might happen until we put the Prime Minister back in his/her Commons-Boss place by rescinding the temporary, emergency, wartime Order in Council P.C. 1940-1121(scroll down and zoom to size) of the Rt Hon Mr King and then holding ELECTIONS at-large for a person to be recommended to the Monarch as GOVERNOR General.

Despite the jibes, jabs and pokes in the ribs and eyes herein, I remain at your service on this file,

rce