Any Law That is Inconsistent With the Provisions of the Constitution is, to the Extent of the Inconsistency, of no Force or Effect

On Thursday (December 10th) Dan Brooks, leader of the BC Conservative Party, issued a media release regarding Senate appointments, the case for BC holding elections to fill vacancies, and for BC to receive a number of seats EQUAL to the population of our province.  The text of the release, put forward, was as follows:

... a better alternative towards reforming Canada's Senate: the direct election of 13 Senators by and for British Columbia.

... Prime Minister Justin Trudeau proposed a new formula to fill Senate vacancies in which five

The Canadian Senate

citizens would be selected, including three appointees by the federal government and two by the province involved.  These appointees would develop a list of candidates meeting an improved set of qualifications to be a Senator from which the Prime Minister would select the eventual appointee ... the Prime Minister may informally consult the province involved but is not required to do so.

That proposal was peremptorily dismissed by BC Premier Christy Clark, first in some quick Tweets then in interviews in which she said the Senate should either be fixed or folded because giving its unelected members more legitimacy without any accountability could make the Senate problems even worse.

...  Brooks took both sides to task and instead offered a constructive solution: the election of 13 Senators with voting coincident with the provincial election set for May 9, 2017, which would avoid the several millions of dollars needed to hold a stand-alone election for what could be merely a symbolic gesture until the Senate is finally reformed.

"First the Prime Minister put forward a dubious innovation apparently without any consultation and containing precious little public involvement and then Premier Clark  dismissed it without suggesting a better alternative, which is another classic example of how poorly federal-provincial relations have so often been conducted in Canada's history," said Brooks, pointing to a table showing that British Columbia has the worst under-representation by far.
 

"If Premier Clark wants to fix the Senate she could start by holding elections for Senators right here in British Columbia,"  Brooks said, explaining that such a strong political statement could help push Ottawa and the rest of Canada into more quickly repairing the unfairness done to BC.

"If Prime Minister Trudeau respects democracy he would quickly appoint six Senators from the 13 that we will elect, but the obvious problem is that he will not be able to appoint any added Senators until the upper chamber is properly reformed," said Brooks.

"BC and The West are still fighting for a Triple-E Senate that is Elected, Effective and Equal because we see that as a possible remedy to long-standing imbalances in Canadian politics and economics," said Brooks.

"The means of Senate election, terms and age limits of the Senators would be a matter for public input ... BC Conservative Party wants to bring a new more open and consultative style to government and this idea for electing Senators is a good first example of that," he said, promising to produce a whole new platform and a strong roster of candidates in the 2017 campaign.

... I would ensure that the people of the province actually get more of a say in matters like these and many others," said Brooks, noting that legitimacy must be earned and the current Canadian Senate has virtually none of it ...

Now interestingly enough, I agree with Dan on the call for Senate reform.  Having come through the ranks of the Reform Party of Canada, and Reform BC, that was a key principle of both.  Not everyone agreed with him though.  One of my political colleagues went so far as to say:

"... my question is, when did the BCCP decide that we wanted to have an elected senate. I absolutely oppose an elected senate. This guy is establishing policy on the fly- reminds me of the last Provincial election ..."

My response was:

Sorry but I'm offside with you on this one, in part anyway.  I do believe in a triple E Senate, and have since Reform BC and Reform Canada days.  That said, I do take Dan to task for not being more aggressive. 

I think his stance should have been flat out, the provincial government MUST elect the 6 senators for BC, and that the government should fight tooth and nail, up to and including a Charter challenge to the Supreme Court of Canada, if the federal government ignores our wishes. 

Good to have differing opinions though, I hope.  :)

Now why did I say what I did.  It was because the Government of Canada agrees with me.  Not the current ruling party, or the one before it; the institution itself, of the Government of Canada.

For example, on the Government of Canada's official website you will find the following:

Democracy Defined

The word democracy describes a political system.  In a democratic country, all eligible citizens have the right to participate, either directly or indirectly, in making the decisions that affect them. Canadian citizens normally elect someone to represent them in making decisions at the different levels of government. This is called a representative democracy.

Personally, I consider the Senate to be a level of government -- would anyone care to disagree with me on that?  The Senate gets to decide if laws passed by Parliament pass muster with them.  Therefore, they ARE a level of government.

Let me go on to provide this additional information:

Canadian Senate divisions refers to two aspects of the Canadian Senate.

First, it refers to the division of Canada into four regional Senate divisions of 24 senators each, as set out in the Constitution of Canada (as defined in subsection 52(2) of the Constitution Acts, 1982, consisting of the Canada Act 1982 (including the Constitution Act, 1982), all acts and orders referred to in the schedule (including the Co0nstitution Act, 1867, formerly the British North America Act), and any amendments to these documents.  The four regions are the Western Provinces, Ontario, Quebec and the Maritimes.  These regions are intended to serve the Senate's purpose of providing regional representation in the Parliament of Canada.

Speaking up for the regions:

The founders of Confederation gave the Senate the important role of protecting regional, provincial and minority interests. They assigned each region the same number of seats in order to guarantee them an equal voice in the Senate. Seats were added as new provinces and territories entered Confederation. Today, the Senate has 105 seats, distributed as follows:

• The Maritimes Division — 24 (New Brunswick — 10, Nova-Scotia — 10, Prince Edward Island — 4)

• The Ontario Division — 24

• The Quebec Division — 24

• The Western Division — 24 (British Columbia — 6, Alberta — 6, Saskatchewan — 6, Manitoba — 6)

• Additional representation — 9
(Newfoundland and Labrador — 6, Northwest Territories — 1,
Yukon Territory — 1, Nunavut — 1)

So as I read and understand this information, it was ALWAYS INTENDED that the Senate be equal.  There was NEVER any intent that Quebec and Ontario be given a stranglehold with OVER REPRESENTATION ... nor that the Atlantic be given a number disproportionate to their smaller population, NOR THAT THE WEST BE WHOLLY UNFAIRLY GIVEN A HUGE MINORITY OF SEATS.

The intent was always that regions / Provinces have a number of seats in the Senate based on population.  Let me go on further with the following information; this from the Canadian Charter of Rights and Freedoms:

Democratic Rights of Citizens (Section 3)
Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

** is the Senate, by this very definition, a legislative assembly?  I would say YES!  Therefore it should be elected.

Equality before and under law and equal protection and benefit of law (Section 15)
(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

** again, according to this section of the Charter, we in the West should have "equal protection and equal benefit of the law without discrimination".  With such an unfair overweighed advantage to Quebec, Ontario, and the Maritimes, we ARE NOT receiving equal protection and equal benefit -- far from it!

Enforcement of guaranteed rights and freedoms (Section 24)
(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances

** our 'rights' are being infringed upon, and denied.  As I noted above, "... the (provincial) government should fight tooth and nail, up to and including a Charter challenge to the Supreme Court of Canada, if the federal government ignores our wishes

Amendments without Senate resolution (Section 47)

(1) An amendment to the Constitution of Canada made by proclamation under Section, 38, 41, 42, or 43 may be made without a resolution of the Senate authorizing the issue of the proclamation if, within one hundred and eighty days after the adoption by the House of Commons of a resolution authorizing its issue, the Senate has not adopted such a resolution and if, at any time after the expiration of that period, the House of Commons again adopts the resolution

And finally, here's the kicker for me ... the LAW OF THE LAND.  Section 52, Primacy of Constitution of Canada, specifically states:

"The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect."

Given what I have read, having an unequal Senate, that is un-elected, is definitely inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

The Fathers of Confederation

Yes ... BC Conservative Party leader Dan Brooks was right in stating that the Province and government of BC should be, "... fighting for a Triple-E Senate that is Elected, Effective and Equal because we see that as a possible remedy to long-standing imbalances in Canadian politics and economics"

What was missing was the fire-in-the-belly conviction of someone hell bent on ensuring that our 'rights and freedoms' are indeed respected, and provided for.  That's because it IS the law of the land.

Come on Dan ... fire up the people of BC! 

Tell them that not only does the West Want In, but that the west wants in as an EQUAL partner.  That's what the Fathers of Confederation wanted, and that is what we have every right to expect.  And if push comes to shove, it's what BC must demand!

In Kamloops, I'm Alan Forseth.  Please feel free to share your thoughts on this, by posting in the Comments Section below.