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Harper's Senate appointments were cynical and hypocritical

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Photo: flickr/ Stephen Harper

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The trial of Senator Mike Duffy has revealed a Prime Minister's Office (PMO) that believes it has the right to control and give orders to just about everybody on Parliament Hill.

The emails tabled in court also tell us a lot about something the Conservative leader has never shared with Canadians: the rules he respected -- and, more important, those he did not -- in naming partisan, Conservative senators.

Harper and the Senate: A moving target

Stephen Harper's views on the Senate have evolved over time.

First, he was the author of the Reform Party's Triple-E Senate policy.

Harper pushed for a Senate that was elected, had equal representation for each province and had real (that is, effective) power.

When Reform was founded in the late 1980s, it was largely a western movement. Its slogan was "the west wants in."

The party's first leader, Preston Manning, believed that central Canada was too dominant in Canadian politics. He saw an equal Senate as a way to create balance and give the west a greater voice.

When he got into power in 2006, Harper adopted his Senate position number two.

He still wanted an elected Senate, but he gave up on the equal and effective part.

Harper knew reforming the Senate required constitutional change and he didn't want to waste any of his new minority government's political capital on that quixotic quest.

Instead, the Conservative prime minister invited the provinces to hold elections to fill Senate vacancies, and he promised to appoint the winners.

That was a bizarre and clumsy idea, and far from the Triple-E goal. It would mean senators elected once would then get to remain in the upper house until retirement at age 75, without ever having to face the voters again.

In any event, as it turned out, except for Alberta, the provinces demurred. They declined Harper's invitation to hold Senate elections.

And so, for a while, Harper pursued a benign neglect policy. He did not fill any Senate vacancies, save for the two for which Alberta had held elections.

Then, in 2008, Harper's position on the Senate changed yet again, this time quite dramatically.

The one-time advocate of fundamental Senate reform now decided he needed more appointed Conservative senators -- a lot more.

Harper wanted to use the Senate to bolster his parliamentary team, especially on the fundraising side, and to help push his radical legislative agenda through both houses of Parliament as quickly and with as little serious debate as possible.

The Conservative prime minister proceeded to name 59 partisan Conservative senators. Every single one was a partisan appointment.

Policymaking by stealth

It is true that among the 59 there are a few who have earned widespread respect for their professional accomplishments outside of partisan politics.

Diane Bellemare is an economist who once worked for a trade union and whose research is frequently quoted by colleagues. Jacques Demers coached the Montreal Canadiens to a Stanley Cup. And Kent Ogilvie is an eminent scientist and academic.

Mostly, however, Harper filled Senate seats with the usual suspects: defeated candidates, such as Michael MacDonald, Fabian Manning and Larry Smith; rich people, such as Irving Gerstein and Nicole Eaton; and loyal party workers, such as his former press secretary Carolyn Stewart Olsen.

Previous prime ministers named folks with similar, dubious qualifications. But they also named at least some who were not of their own party.

Liberal Prime Minister Paul Martin appointed well-known Progressive Conservative Hugh Segal.

Pierre Trudeau, another Liberal, appointed one-time NDP candidate and peace and women's rights advocate Thérèse Casgrain. She sat as an independent.

Trudeau also put Preston Manning's father, former Social Credit Alberta Premier Ernest Manning into the red chamber.

Harper made no such appointments.

In fact, his change of heart on Senate appointments was policymaking by stealth.

Having decided to name unelected senators after promising not to, Harper did not publicly enunciate the principles that guided his new policy.

He did not tell Canadians on what basis he planned to select more than half the members of the upper house.

Now, via the release of all those emails at the Duffy trial, we can glean some insight into Harper's thinking on that score.

Harper defied one of two constitutional requirements 

A good part of the scandal concerning Duffy, and Senator Pamela Wallin, concerns the residency qualifications for the Senate.

The constitution lays out two separate and distinct requirements. Senators must own $4,000 worth of property in the provinces they represent, and they must also "reside in" those provinces.

It turns out that Harper thinks it's good enough if a prospective senator only fulfills the first requirement, property ownership.

In the entire thick binder full of emails released at the Duffy trial there are very few cases in which PMO staffers quote Harper directly.

On the constitutional residency requirement, however, Ray Novak, now Harper's Chief of Staff and at the time his Principal Secretary, does cite the boss, word for word.

In one of the many exchanges on what to do about Duffy, a senior staffer for Senator Marjory LeBreton -- who was then government leader in the Senate -- suggests that the Conservative Senate leadership should ask the Senate Rules Committee to "define" constitutional residency.

In the chain of email exchanges that idea is called Option 1.

Well, when Harper got wind of Option 1, he was not pleased, not one little bit.

In an email to the PMO's inner circle and key Senate staff, Ray Novak directly quotes his boss:

"I feel very strongly on Option 1," Harper instructs Novak. "Had I known we were going down this road I would have shut it down long before this memo... As long as they [Senators] maintain a residency in their province, as per tradition, we will deem that as sufficient for this [constitutional] purpose..."

Harper wants us to believe there is a longstanding constitutional convention, or "tradition," that allows a prime minister to consider anyone, who owns the $4,000 worth of property, a resident for the purpose of sitting in the Senate.

That convention, however, seems to be mostly a figment of Harper's imagination.

Way back in 2008, when Harper boosted Duffy to the upper house, David M. Bulger, a constitutional law professor at the University of Prince Edward Island, said it was an unconstitutional appointment.

Bulger told the Island newspaper, The Guardian: "What it comes down to is -- does he have to be a resident in the province at the time when he's appointed? Some of us, and I am one of them, would argue yes.''

And Bulger is not alone.

Harper's own lawyer, Benjamin Perrin, seems to have held a similar view.

Responding to Novak's email citing Harper on the residency issue, Perrin first obediently exults in the "clarity" of the boss' position.

But, careful lawyer that he is, Perrin nonetheless feels it necessary to warn Harper that it is not normal to consider any article of a law or constitutional provision to be "redundant."

In other words, if the constitution has two separate provisions, property ownership and being "resident in," one is not superfluous. They both count.

Legally and constitutionally, one cannot say fulfilling the first automatically means you have met the second requirement.

"I point out for your information only," Perrin writes, gingerly, "that this [Harper's] approach may appear to run counter to the basic interpretative principle of a presumption against redundancy -- deeming through interpretation one qualification to satisfy another distinct qualification makes the latter redundant."

Perrin goes on to quote jurisprudence from a number of cases, including this citation:

"It is a principle of statutory interpretation that every word of a statute must be given meaning: 'A construction which would leave without effect any part of the language of a statute will normally be rejected'..."

Conservative leader has not levelled with Canadians

Of course, Harper has never clearly stated his view on Senate residency requirements. He makes vague references to a convention that allows him to appoint what appear to be constitutionally unqualified folks such as Wallin and Duffy to the Senate, without saying what he means.

It would be interesting to see how Canadians might react if the Conservative leader were to be totally candid with them.

Would rank-and-file citizens be satisfied if a prime minister told them that, in his mind, senators-to-be could be considered "residents" of "their" provinces, even if they had not lived in those provinces for four decades or more?

In this respect, by the way, Harper is an outlier among prime ministers.

There are precious few, if any, cases of prime ministers, going back to John A. Macdonald, naming senators who did not reside in the provinces they represented, at the time of their appointment.

Despite Harper's invented claim of a "tradition," naming non-residents to the upper house was something previous prime ministers simply did not do.

Harper named at least four such constitutionally challenged senators: Duffy, Wallin, Stewart Olsen, and Dennis Patterson, who represents Nunavut but lives in British Columbia.

That is almost certainly a record.

Now, Harper has yet another Senate policy. He will cease naming people to the upper house and wait for the provinces to figure out what to do about the institution.

Or something like that.

The Duffy trial is teaching us that the Conservative leader almost certainly knew something funny was happened with Duffy's $90,000 payment. As well, it has shown that a number of PMO staffers, including current Chief of Staff Ray Novak, quite likely knew all about Wright's arrangement with Duffy.

The trial is also stripping bare Harper's cynical and hypocritical approach to Senate appointments.  

 

Photo: flickr/ Stephen Harper

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