Conrad Black: Donald Trump remained defiant in the face of death. Can Democrats respond with honor?

Fears of an inevitable conflict between a future Conservative government under Poilievre and the post-Trudeau Senate were highlighted by Paul Wells’ recent interview with Senator Peter Harder. Harder’s comments suggest that federal politics will face a constitutional crisis once there is a change of government in Ottawa.

Attentive observers have criticized the Trudeau government’s reforms to make the Canadian Senate independent and non-partisan. Rather than appointing people with party political backgrounds, the Trudeau government has primarily appointed people with academic, public or elite roles in voluntary or community organizations. As one political scientist noted, “They may not be liberals, but they are ‘liberals.'”

Senator Harder is a senior civil servant, former deputy minister of foreign affairs and supported the Liberals’ transition efforts in 2015. Mr. Harder embodies the upper house that Justin Trudeau initiated. Wells has contacted Senator Harder to discuss his May motion calling on Senators to refuse to pass a House of Commons bill that uses the disregard clause. Senator Harder said his motion was a direct response to the opposition leader’s comments that a Conservative government would use the Charter’s disregard clause to increase penalties.

If adopted, this proposal would be a major obstacle to a future Conservative government and would create the constitutional crisis that Howard Anglin and Ray Penning have been raising alarm about. Harder’s comment aptly reflects the pattern of Ottawa officials “Pierre-proofing” many aspects of the state ahead of the next election. However, Senator Harder’s interview with Wells also reveals a troubling and improvised understanding of the Canadian constitution. Given Harder’s influence among independent senators and his past role representing the Liberal government in the Senate, his comments should be taken seriously.

What is most troubling about Senator Harder’s views is his “court-centric” portrayal of the Canadian Constitution and Charter of Rights and Freedoms. This is unfortunate because a reformed Senate should serve as an additional parliamentary check on legal matters separate from the courts, not one that merely duplicates and reinforces judicial interpretations of rights. What seems to motivate Harder (and other opponents of the no standing clause) is that elected governments, not courts, have a say in legal matters. Senator Harder uses the metaphor of a “dialogue” between courts and parliaments, and calls the “preemptive use of the no standing clause” an unfortunate development because it “takes the judiciary out of the equation.”

Harder continues: “The use of the non-application clause represents a profound restriction of the rights enshrined in the Charter, particularly when used preventively, since it amounts to an admission of a violation of those rights.”

This statement is incorrect in two respects. First, Senator Harder assumes that only courts can articulate the meaning of rights. However, this is contested within the Canadian legal tradition, and the no-subject matter clause allows for legislative interpretations of rights. Second, Senator Harder is incorrect when he says that preemptive use of the no-subject matter clause is tantamount to admitting a violation of rights.

As Dave Snow has shown, preemptive use of the Disapply Clause is the historical norm, and such preemptive use is often justified because it is the only viable way to enforce government policy. Most uses of the Disapply Clause have been “preemptive,” and concerns about these uses of the Disapply Clause are primarily an attempt to stigmatize the Clause in general.

Later in the interview with Wells, Senator Harder is asked if the independent Senate will allow the Trudeau Liberals to continue to influence policy “from the political grave” and cause headaches for a future Conservative government. Harder states that the following criteria will be used to assess bills introduced by governments “of any stripe”: “Is the use of the disapplying clause preemptive or is it in response to a high-level judicial decision? Has the Minister of Justice made a Charter declaration? Has the government engaged in a public consultation process? Has the House of Representatives engaged in a comprehensive committee process with sufficient testimony? Has the time allotment been used to shorten debate?”

In addition to his misguided concern about pre-emptive use, Harder’s mention of the existence of a Charter Statement by the Attorney General is something of a red herring. As Joanna Barron has shown, these statements are often talking points and justifications by the PMO regarding the constitutionality of a proposed law. I doubt a future Conservative government will use them, but even if they did, it is unlikely that they could ever be used by a Conservative government to address Senator Harder’s concerns, given his outspoken comments on the nonobstant clause.

In Harder’s closing remarks, however, he displays the most troubling understanding of the Constitution. Harder states that the Senate will continue its historic role in improving legislation through amendments and consent of the House, but with “the proviso that the elected House of Representatives shall not pass legislation manifestly in violation of the Constitution by using the disregard clause.” It is remarkable that a sitting parliamentarian needs to be reminded of this, but The non-application clause is part of the Charter and part of the ConstitutionIt is remarkable that someone with such an influential role in shaping legislation has provided such a crude account of the necessity clause and its role in the Canadian Constitution.

If the House of Commons does indeed choose to use the non-obstant clause, it will likely channel constitutional disagreement with a broader judicial interpretation of legal issues. Senator Harder is right that there should be a “dialogue” between courts and parliaments. Unfortunately, Mr Harder is proposing a continued monologue in which the courts must speak and parliamentarians must listen.