OTTAWA - "Mr. Trudeau's proposal would require constitutional change. That is eminently clear from a straight reading of paragraph 64 and 65 of the (Supreme Court) ruling." — NDP Leader Tom Mulcair, speaking after a caucus meeting Wednesday.
When the Supreme Court's ruling on Senate reform last week slammed the door on Prime Minister Stephen Harper's hopes of dodging a constitutional quagmire, his rivals were left to argue about alternatives.
NDP Leader Tom Mulcair, a champion of abolishing the Senate, said he would forge ahead undaunted. Liberal Leader Justin Trudeau, meanwhile, defended his plan to create an advisory panel to recommend non-partisan Senate nominees as the only realistic route to reform while avoiding the Constitution.
The high court said creating a "consultative election" process to choose Senate nominees would change the method of selecting senators and, thus, would require a constitutional amendment supported by at least seven provinces representing 50 per cent of the population (the so-called 7/50 formula).
Since then, Mulcair and his democratic reform critic, Craig Scott, have said the court's reasoning applies equally to Trudeau's idea of a panel to recommend worthy, non-partisan nominees.
However, constitutional law experts say the NDP is reading far too much into the court's decision. They concur with Trudeau, who says his proposal would not require reopening the Constitution.
Spoiler alert: The Canadian Press Baloney Meter is a dispassionate examination of political statements culminating in a ranking of accuracy on a scale of "no baloney" to "full of baloney" (complete methodology below).
This one earns a rating of "a lot of baloney" — the statement leaps to a highly debatable conclusion on an issue that the court did not directly address.
Paragraphs 64 and 65 describe the top court's reasoning for deciding that a consultative election process, as proposed by Prime Minister Stephen Harper, can't be created unilaterally by the federal government.
In paragraph 64, the court notes the Constitution spells out that changes to the "method of selecting senators" require the 7/50 amending formula.
In paragraph 65, the court adds that "the words 'the method of selecting senators' include more than the formal appointment of senators." The framers of the Constitution intended that "the entire process by which senators are selected" can only be changed under the 7/50 formula.
The court goes on to say that consultative elections "would produce lists of candidates, from which prime ministers would be expected to choose when making appointments to the Senate ... (and therefore) would form part of the 'method of selecting senators.'"
At no point did the court directly address other alternative mechanisms for a prime minister to consult on Senate appointments, over which the Constitution gives him, through the Governor General, unfettered discretion.
Mulcair and Scott argue that the court's reference to "the entire process by which senators are selected" would include creation of an appointments advisory panel as proposed by Trudeau.
Since the court itself was silent on the issue, there's no way to claim with absolute certainty that Trudeau's proposal would or would not require a 7/50 amendment.
However, three constitutional law experts consulted by The Canadian Press say the NDP's interpretation of the ruling is highly doubtful.
"I'm sad to say it's a lot of legal baloney," said University of Ottawa law professor Errol Mendes.
"It's pretty high baloney," concurred retired political science professor Peter Russell, who has advised various governments on constitutional law. "I think they're reading too much into those two paragraphs to be certain."
Emmett Macfarlane, a University of Waterloo professor who has written extensively on the Supreme Court, said: "I don't think it's quite as clear as the NDP seems to think."
Macfarlane, who describes himself as "anti-partisan," was consulted by Trudeau's inner circle last winter before the leader announced his plans for reforming the Senate without reopening the Constitution.
Macfarlane advised that creating an informal advisory panel would not require a constitutional amendment, provided that its creation was not entrenched in legislation meant to bind future prime ministers. His view hasn't changed since Friday's ruling.
"Right now, the prime minister is free to choose appointments to the Senate however he wishes. He could pick random names out of the phone book, he could consult with pretty much whomever he wants behind the scenes," Macfarlane said.
"As long as reforms don't bind that (prime ministerial) discretion ... they should be free and clear."
Based in part on Macfarlane's advice, Trudeau has vowed that, should he become prime minister, he would "put in place an open, transparent and public process for appointing and confirming senators," similar to the process for selecting Order of Canada recipients. He has also kicked senators out of the Liberal caucus, in a bid to return the chamber to its intended role as an independent, non-partisan chamber of sober second thought.
Russell agreed that just creating an advisory panel, without any formal legislation, would be the route least likely to require a constitutional amendment. But even if it was legislated, he said there are "a lot of precedents" to suggest it can be done by the federal government alone.
He noted that federal and provincial cabinets have unfettered constitutional discretion to appoint whomever they please to the judiciary. Yet they all have created advisory bodies to recommend the best candidates.
Mendes cited the same judicial precedent. If the NDP's interpretation of the top court's decision on the Senate is correct, "we've got a lot of unconstitutional judges around," he joked.
Mendes called the NDP argument "dead wrong" on another front: it ignores the fact that the court's decision was based primarily on its view that consultative elections would, in practice, be binding on prime ministers and, consequently, would change the fundamental nature of the appointed Senate.
It was because the change would be so fundamental that the court said substantial provincial consent would be required, Mendes said, arguing that the same argument would not apply to creation of an advisory panel.
Mulcair's claim that it's "eminently clear" Trudeau's proposed advisory panel would require a 7/50 amendment is, according to experts, not at all clear and probably wrong. For this reason, there's "a lot of baloney" in the claim.
The Baloney Meter is a project of The Canadian Press that examines the level of accuracy in statements made by politicians. Each claim is researched and assigned a rating based on the following scale:
No baloney — the statement is completely accurate
A little baloney — the statement is mostly accurate but more information is required
Some baloney — the statement is partly accurate but important details are missing
A lot of baloney — the statement is mostly inaccurate but contains elements of truth
Full of baloney — the statement is completely inaccurate
Supreme Court of Canada reference re: Senate reform:http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13614/index.do
Errol Mendes, University of Ottawa:http://www.commonlaw.uottawa.ca/en/errol-p.-mendes.html
Peter Russell, University of Toronto:http://politics.utoronto.ca/faculty/profile/?id=76
Emmett Macfarlane, University of Waterloo:https://uwaterloo.ca/political-science/people-profiles/emmett-macfarlane
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