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Questions that won't come up at the Supreme Court

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Prime Minister Stephen Harper is back in control, sort of. The Senate has been put in its place again. The three wayward Conservatives, Duffy, Wallin and Brazeau, who went out of their way to make life miserable for the PM, have been cast into outer darkness, their paycheques terminated (but, oddly, not their health or life insurance nor, it seems, their pensions).

The clumsy cover-up concocted by the Prime Minister and his staff has been swept into a black hole reserved for fables that no intelligent person would entertain.

With the Commons off for its week-long Remembrance Day recess, attention will shift to the Supreme Court of Canada, which has set aside three days this week to hear lawyers argue the nitty-gritty of the Harper government’s constitutional reference on Senate reform. The court’s task will be complicated less by the pyrotechnics on Parliament Hill than by the inexactitude of the reference itself.

After roughly two decades of hemming and hawing, the Harper party still doesn’t know what it wants to do with the Senate or what role, if any, it wants the upper house to play in the life of the country.

Back in its Reform days, the party thought it wanted a serious upper house, elected and effective. As the prospect of attaining office increased, however, the Conservatives, as they had become, lost their ardor for a real Senate on the U.S. model. Why share power with a second house?

After forming the government in 2006, the Conservatives did introduce bills to tweak the Senate, but never made a serious effort to pass them. At first, they blamed opposition obstruction. These days they are blaming the courts for thwarting reform -- this without even waiting for the Supremes to hear arguments this week.

The reference invites the Supreme Court to choose from a smorgasbord of options: from outright abolition of the Senate (which appears to be Harper’s new default position); to retaining the red chamber but eliminating its powers; to limiting the terms of members to eight years or to nine years or to 10 years or more (take your pick); to authorizing federal and/or provincial referendums to nominate senators; to repealing the requirement that senators own $4,000 in “real property” in the province they represent.

But (Mike Duffy and Pam Wallin take note) there is no mention of the thorny issue of residency: are senators required to actually live in the province they represent, or it is good enough to own a second residence there? The Supreme Court is not being asked that.

It is being asked about amendment procedures. Abolition of the upper house would likely need unanimous consent among the provinces; lesser changes might require use of the 7/50 formula (seven provinces with 50 per cent of the population); a relatively minor reform (such as term limits) might be accomplished by act of Parliament alone, as happened with the court’s blessing in 1965 when the retirement age of 75 was enacted.

The Supreme Court hearings may divert attention from the expenses scandal, but the respite will be temporary for the government. The RCMP is still investigating the expense claims of the trio of Tory senators, plus newly retired Liberal Mac Harb. The auditor general is reviewing the expenses of all senators. And Duffy and Wallin have lawyers primed to fight their suspensions in court.

More important, crucial questions will still be waiting for Harper when Parliament resumes in a week’s time, and Opposition Leader Thomas Mulcair will be there to ask them.

Why did the Prime Minister’s Office tell Duffy it was okay to claim his P.E.I. cottage as his principal residence when everyone knew he had lived in Ottawa for years? Why did the Prime Minister assure Parliament that he had seen Pam Wallin’s expenses and they were consistent with other senators’? Why was Nigel Wright unceremoniously downgraded from Loyal Lieutenant to Great Deceiver?

Finally, what did Harper himself know and when did he know it? As I have noted before, this is not Watergate, but it has a similar smell.

This column appeared in the Guelph Mercury and Kitchener-Waterloo Record.

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