The most dangerous is his promise to reform the Senate without actually amending the Constitution, as the Constitution itself requires.
Section 42 of the Constitution Act, 1982, states with clarity that you can change "the powers of the Senate and the method of selecting senators" only through a constitutional amendment endorsed by the House of Commons and seven provinces representing 50 per cent of the population of all the provinces. (The Senate itself could delay such an amendment for 180 days, but could not prevent it.) Inconvenient. Mr. Harper promises an extra-constitutional shortcut: He will hold elections to fill vacancies in the Senate by using the prime minister's current powers of appointment to select only candidates who have been elected in the provinces they are meant to represent.
Presto: We have fundamentally changed Canada's parliamentary system through a wink and nod, an end run, a back door, a two-step -- a slap in the face to the Constitution Act, 1982, which was supposed to be Canada's legal foundation.
Well, what's constitutional law in the face of a good cause?
Did we say a good cause? The Senate's powers are almost equal to those of the House of Commons under the existing Constitution, but those powers are not used against the Commons because the appointed Senate has no democratic bona fides. Elect the Senate as it is, and you change the dynamics of Canadian democracy fundamentally and forever.
Maybe, on the basis of population, senators representing the Maritime provinces should exert far more political power than those representing Alberta, Quebec or Ontario.
Maybe government bills from the House of Commons should be defeated by senators, without bringing down the government, or suggesting the government is responsible for their defeat.
Maybe much more time should be spent on passing legislation by horse-trading in pork, in the best U.S. tradition, between two elected and powerful houses.
Maybe. But that's not something to be left to an opportunistic and probably illegal manoeuvre that makes a fiction of the Constitution and makes the sponsorship scandal look like mischief at a penny carnival.
The Supreme Court of Canada might well overthrow the appointment of a Harper-style elected senator if presented with the issue, on the traditional grounds that you cannot achieve by one means what the law forbids by another.
Ah, but that raises the second of Mr. Harper's constitutional vexations: the authority of the Supreme Court itself.
The Conservative platform says that Stephen Harper "will give Parliament, not the courts, the final decision on issues like marriage." As Mr. Harper has acknowledged during the campaign, this means he would use the "notwithstanding" clause of the Charter to overturn court judgments when he believes those judgments to be significantly wrong.
The Charter does say that Parliament can overturn court judgments protecting fundamental freedoms (such as conscience, religion, thought, freedom of the press, association), legal rights (such as security of the person, unreasonable search and seizure), and equality rights (such as equality before the law and the equal protection and benefit of the law). But who would want to do so?
Mr. Harper believes that "issues like marriage" -- i.e. homosexual marriage -- is one of those emergencies. It falls into the category of conscience or morality, which could include abortion and capital punishment. No small potatoes.
At least this part of the Harper platform is constitutionally legal. But Mr. Harper is prepared to sustain otherwise illegal discrimination against certain people in certain fields -- for "good reason" -- effectively nullifying the Charter in important respects while he is in office.
He could not overrule the courts if they deemed his slyly elected senators to be illegal, because the notwithstanding clause does not apply. But he could uphold an otherwise unconstitutional law regulating abortion.
He says he has no plans for any law on abortion, but will welcome private member's bills, and that the great majority of bills before the Commons will be free votes. So as prime minister, he would not use even a majority whip to stop repressive or harsh legislation. In effect, on many matters, he seems to be running to be elected as Pontius Pilate.
Put this all together -- a House of Commons controlled by shifting coalitions without much party discipline and no direct government responsibility; an improperly elected and equally powerful Senate grossly unrepresentative by population forcing tradeoffs on the Commons for regional and sectional interests; and a Constitution distinctly weakened by use of the notwithstanding clause against Charter guarantees of minority, legal and fundamental rights.
Wow. Voting is the act of choosing.
William Thorsell is director and chief executive officer of the Royal Ontario Museum
