Hypocrisy At The Chronicle Herald

Yesterday, the Chronicle Herald's editorial board came out against the Liberal Party's plan for seat redistribution in the House of Commons. Here's the reason they gave for taking that position:

Mr. Dion’s proposal would leave the Senate clause untouched, but would require changes to the grandfather clause. He says Parliament could alter the baseline by which seat distribution is calculated without triggering the complex constitutional amendment formula.

But those provinces which stand to lose ground might not see it that way. (Quebec would, in fact, fare slightly better, proportionally speaking, under Mr. Dion’s plan, although it’s hard to sell a seat reduction as a plus.)

What if they mounted a constitutional challenge? Ottawa might end up spending millions on court costs — so much for savings — while wasting precious political capital.

Talk about fixing it worse.

The sum total of their objections amounts to the fear of a costly court challenge by the provinces.

But only a few weeks ago, the same editorial board completely ignored the cost of court challenges when it endorsed the Harper Government's Senate reform proposal:

The former federal Liberal leader [Stephane Dion] is right, for example, to point out in a Halifax speech that there’s no clear way to break deadlocks between the House of Commons and the Senate, which may be more frequent if elected senators become more activist and assertive.

It’s also true the regional and provincial balance in the Senate is out of whack, costing it credibility in short-changed Alberta and B.C. [snip]

Actually, the worst quantity of Senate reform right now would be zero. That’s probably what we would get if Ottawa tried to change things that require provincial consent, like redefining the Senate’s powers or re-balancing the provincial seat counts.

Notice that the Herald's editorial board accepts without question the government's argument that its proposal for electing senators is constitutional and does not require provincial consent.

One would think the Herald's editorial board would be well aware that Quebec's Intergovernmental Affairs Minister Pierre Moreau has already promised to challenge the federal government's senate reform package:

“If [Senate reform] legislation is introduced, one of the things we will do is challenge the bill before the Court of Appeal and eventually the Supreme Court of Canada,” he said.

The Herald's hypocrisy is further highlighted by the fact that there are no constitutional grounds on which to challenge the Liberal seat redistribution proposal, while the government's Senate reform bill inhabits a constitutional grey area, at the very least.

The news media has been responsible for spreading a great deal of misinformation about the Liberal seat redistribution plan. A lot of this misinformation surrounds supposed guarantees for Quebec. The National Post, for example, claimed that Quebec has a unique 75 seat guarantee that would require its consent to change. Not true. The Post later backed off from this position and explained their error as follows:

Since the 1950s, it has been taken as a given that Quebec must always have 75 seats in the Commons, no matter how low its share of the nation’s population. (It was this received wisdom that was the basis for our Thursday editorial on the subject.) But while the Constitution since then has stipulated that Quebec’s contingent must be used as the baseline for determining the number of seats in the rest of the provinces, according to the Liberals, the 75-seat requirement is not a hard-and-fast “floor” for the size of Quebec’s delegation. Rather, Section 44 of the Constitution allows Parliament to alter the size of the Quebec caucus, so long as Quebec’s representation remains proportionate.

(Quebec politicians will undoubtedly challenge this interpretation. They have long maintained that while the Constitution does not stipulate 75 seats, per se, it does assure Quebec will not lose seats, which amounts to the same thing.)

First, it is not the case that, "since the 1950s, it has been taken as a given that Quebec must always have 75 seats in the Commons, no matter how low its share of the nation’s population." For the 1968, 1972 and 1974 elections Quebec sent 74 MPs to sit in the House of Commons.

Second, the constitutional provision using Quebec's 75 seats as a baseline for distribution calculations was repealed in 1985.

Third, the provision stipulating that Quebec cannot have fewer seats then it did in 1985 (the grandfather clause) is within the federal government's exclusive jurisdiction to amend. This is not in dispute!

It's unfortunate that the Chronicle Herald seems to have taken the National Post's fear mongering regarding the Liberal seat redistribution plan and constitutional court challenges as received wisdom, if for no other reason than it isn't very wise at all.