Back-burner Elected Senate ---- Elect the Governor General!

Robert Ede	Tue, Sep 18, 2012 at 7:42 AM
To: hill times Cc: Bea Vongdouangchanh    Robert Ede  Tue, Sep 18, 2012 at 7:59 AM To: torstar Cc: chantal hebert
Dear Editor, Thank you for the details on strategy and process regarding  Bill C-7 within Harper doesn’t want to wake ‘constitutional leviathan’ on Senate reforms, slowly building his case: Tory source and within Hébert: Harper poised to put Senate reform on ice Notwithstanding the virtues and flaws in this version of Senate-Reform 'Lite', and, notwithstanding the unfounded fear of many Canadians that a Constitutional Discussion = a Quebec-Secession Discussion, I believe the informed citizen would agree that we must first re-store the integrity of our as-written, 1867 BNA/Constitution's 4-tiered, checks-and-balances system before we dare initiate re-forms to any of the "internal moving parts" If it is universally agreed that an ELECTED Official is preferable to an APPOINTED one .... then let's hold elections to select the recommendation to the Queen of our next Governor General. If we can restore the mandate of the only Office empowered to "just say no" to a majority PM, by simply electing that Official .... then let's get it done!  My suggestion is an at-large vote, every-other General Election, using a single-transferable ballot to choose a person who will hold a single term as GG, starting 365 days after the return of the Writs in the General Election. The swearing-in should include a Public Reading of the Letters Patent constituting the Office of Governor General and Commander-in-Chief - 1947 and BNA-1867's Sections 12-13, 53-57 + s.90

Polls are not about telling the future, but about influencing it!

To: news@hilltimes.com, hill times <kmalloy@hilltimes.com>

Dear Ed, Eric Grenier summarizes his Did Quebec’s election polls lie?; HillTimes Sept 17/12 with Polls do need to be treated with more caution and with increased recognition of their limitations.   ... the results of the elections in Alberta and Quebec should provide an impetus for a greater understanding of what polls can tell us, what they cannot, and what that means in the context of an ever-changing election campaign.  During Elections, polls commissioned for publication (ie not all polls) by Parties/Campaigns are intend to influence voters. The idea is to show a wavering supporter that the "enemy" is gaining support and encourage the on-the-fence voter to vote against that apparent trend. The best example was the May 2/11 General Election when polls were published showing huge national-wide gains by the NDP - the numbers were true ... except in these so-called "national polls" Quebec-based support is adjusted to show it as part of the national picture (regional is goosed up). The late Mr Layton's ebullient public rallies after the Orange Surge poll - boldly speaking about becoming Prime Minister Layton - actually cooked his own goose. The middle class in the Rest of Canada, who distrusted the NDP more than they worried about the Ref/Cons in majority and  who had planned to contain the HarperTeam to minority again (they were right -look at the arrogance subsequently), decided the "enemy of my enemy is my friend" and flipped to Blue in the final days. Without talk radio & the right-of-centre press spreading the implications of the "apparent Orange Surge" presented in that (misunderstandable) poll 7-10days before election day ... Mr Harper would not be in the position of "Unstoppable and Unchecked Autocrat" aka King-for-Four-Years rce

Carol Goar (TorStar) Notices the $4,000 Senate Qualification s/be more like $200K

re: Fusty Senate & inflation-adjusting Upper House's Qualification/Disqualification standards

---

Robert Ede <robertede@gmail.com>	Thu, Sep 13, 2012 at 6:54 PM
To: cgoar@thestar.ca, torstar <lettertoed@thestar.ca>
Dear Ms Goar & Editors Re Fusty Senate yields to change / is starting to look more like Canada I congratulate you on being the only political writer in Canada who sees the significance of adjusting the 1867 Standards for Senators to today's purchasing-power parity. I believe is the only Canadian government dollar-amount that has been ignored in this way. Further you are the only writer who has noticed the irony in the appointment of the late M. A. "Peggy" Butts: from Wiki At the age of 73, Peggy was appointed to the Canadian Senate. However, qualification laws for senators caused problems with her appointment. All Canadian senators are required to possess land worth at least $4,000 in the province for which he or she is appointed, as well as own real and personal property worth at least $4,000, above his or her debts and liabilities. Having taken a vow of poverty upon becoming a nun, Butts was able to officially be sworn in only after her order formally transferred a small parcel of land to her name These facts are particularly interesting as a reflection on the lack of awareness of these qualifications/disqualifications exhibited by the Person nominating this devoted, extremely well-educated and widely-honoured Sister (ie expressly NOT an unkind reflection on the late Ms Butts personally) when you consider the Special Oath (in the Fifth Schedule of 1867) that Senators are exclusively required to swear, because their Office is the ONLY Canadian post with Net-Worth and Net Property-Equity a) Qualifications s.23 and b) Disqualifications s.31. I  __ do declare and testify, That I am by Law duly qualified to be appointed a Member of the Senate of Canada, and that I am legally or equitably seised as of Freehold for my own Use and Benefit of Lands or Tenements held in Free and Common Socage in the Province of Nova Scotia of the Value of Four thousand Dollars over and above all Rents, Dues, Debts, Mortgages, Charges, and Incumbrances due or payable out of or charged on or affecting the same, and that I have not collusively or colourably obtained a Title to or become possessed of the said Lands and Tenements or any Part thereof for the Purpose of enabling me to become a Member of the Senate of Canada, and that my Real and Personal Property are together worth Four thousand Dollars over and above my Debts and Liabilities. Ms Goar, perhaps you might follow up with an article on how Ms Butts' employer and the Prime Minister of the day were allowed to "colourably collude" to deftly side-step the 1867-level dollar/property qualifications? Was it an error on all parties, a cover-up by one or the other or did simply no one (within the Senate/ the Courts/ Poli-Econ or Poli-Sci Academia) care enough to rock the boat on this very small breach of the "as-written" foundational laws of the land? I favour the idea of adjusting the $4,000 in s.23 & s.31and the Oath to reflect today's purchasing power, in hopes of prompting Canadians to examine the "rationale/purpose" behind the framers' decision to "wealth-quantify" the type of person they deemed suitable to represent Canadian 'patricians' (equally-from-all-divisions) in our Senate ie our "similar in Principle" House of Lords. rce   Robert Ede,      Spokesperson, The Majority of Canadians P.A.C.  "All truth passes through three stages. First, it is ridiculed. Second, it is violently opposed. Third, it is accepted as being self-evident." -Arthur Schopenhauer (1788–1860)

Citizenship in the Vineyard-called-Canada

Robert Ede <robertede@gmail.com>	Wed, Sep 12, 2012 at 12:49 PM
To: The Tyee <editor@thetyee.ca>, The Tyee <pitch@thetyee.ca>, KaiNagata@kainagata.com
Dear Kai & Tyee Editors, Thank you for Five Questions for Kenney's Vote-Stripping Brigades - I found it on an auto-search of google for "majority-of-Canadians" First, I agree that the behind-the-scenes story is likely rooted in gerrymandering for fun-and-profit within the RefCon party + zenophobia within the Ref/Con original constituency And I also agree that rooting out fraudulently-obtained citizenships and citizenships-of-convenience is a worthy effort. To that end, my suggestion is to simply eliminate dual-citizenships - you're either in or out? you're in this "club" and committed to it .... or you're not!   Please everyone just take a pick and we'll all know where you stand re: the great north strong and free. We'll know what we can expect from you and know what and how-much to share with you ... as an individual. I don't care WHERE you came from, I only care whether you're on the "team" now that you're HERE. As a vital part of this change in policy, I suggest a phasing out of the existing duals (ie NO grandfather/mothering of existing ones) over a 5yr or ten yr timetable. For perspective and insight, please consider Canada in an analogy -- a private Golf/Tennis/Social "Equity" Club (owned by members in common as shareholders), if you want to join the club you pay the price of admission, the annual dues and abide by the rules. If you're invited as a guest, by a member a) you are obliged to follow the club rules and b) the guest is responsible for you actually being observant of the existing club rules/regs. Contrast this to a Canada as "a public municipal Golf/Tennis/Social club" - the difference in quality, cost, decorum, responsibility etc Finally consider a comparison of  Canada to a "tragedy of the commons" playing field (land asset) that is used-to-the-max by everyone, tended by no one and administered by a far-off techno/bureau-crat who only monitors the number of users (quantity) and has a job-description that make no mention of quality-of-use, cost-of-use, cost-of-repair/replacements, degeneration-of-asset-by-type-of-use, sustainability of the asset and no concern for the current "highest & best use" of that asset. Citizenship in this country built of gold, liquid gold and pure water is a treasure.  Why are we letting the far-off techno/bureau-crats spoil it?  Assume for a second that you & me and every citizen OWNED the country collectively; Also assume that our Monarch was the titular head of the collective entity that OWNED the country; Further assume that the government and its employees all swore allegiance and pledged loyalty and took a solemn oath to "do what was best" for the owners (embodied in the Officeholder of the Title Queen/King) of the country; And then the Stewards of the Owners Assets and Treasury DID NOT DO what they swore/pledged and solemnly promised to do. And then what? a protest? a call to accounting? a petition to snatch back control of the management of the asset by the owners? a  confrontation with the stewards of the Owner's assets? But the Husband(wo)men of the Vineyard-called-Canada just intimidated the messengers, used stalling tactics and set up procedural barriers to delay any/all meetings etc anything ... to prevent the possibility of being held to account.  The Owners sent more representatives to challenge these Bad Stewards, but these messengers too were beaten, killed, stoned, bought-off, given jobs in the Senate or Privy Council Office etc etc ....  So the collective-of-Canada sent the titular heir to speak on their behalf ... and the Husband(wo)men said "This is the heir, let us kill him and seize on his/her inheritance"  (see Matthew 21:40-41 for the "normal answer) But in this case as deferential-to-a-fault Canadians, the owners individually quietly walked away and said to themselves "I guess there's nothing I can do about it"? There is no shame in turning back when you discover you're on the wrong path -rce, 2006   Robert Ede,      "All truth passes through three stages. First, it is ridiculed. Second, it is violently opposed. Third, it is accepted as being self-evident." -Arthur Schopenhauer (1788–1860)

What if "... Canada DID elect its Chief Executive"?

To: globe &mail letters <letters@globeandmail.ca>, eric@threehundredeight.com

Dear Editors and Mr Grenier Thank you both for Sept 10/12 :How history would be different if Canada used the U.S. electoral system My attention was drawn to the off-handed "what if" posed within Mr Grenier's introduction to his meticulous application-to-Canada of the All-or-none Electoral College system chosen by the framers of the Second USA Constitution to determine their system's Chief Executive (NB originally, the second-place finisher became the Vice President) What if we DID elect our Chief Executive?  The first thing to consider is that the Prime Minister is NOT the Chief Executive, this position, in the power-sharing hierarchy of the BNA/Constitution 1867, is held by the Governor General.  The Prime Minister is, by Westminster tradition/convention, the person chosen by the Governor General to attempted to form a Cabinet/Government based on the GG's judgment of "who best" commands the Confidence of the Lower House of Assembly, the aptly-named House of Common(er)s If we held an election (say, every-other General Election, for a Single term starting 365 days after the return of the Writs) to decide who should be the "recommendation to the Monarch" we would accomplish several objectives:  1) re-establish the Part III Executive Power "check" on the Part IV Legislative Power;  2) make the Prime Minister's Job much easier (S/he could look after the day-to-day stuff (and of course, staying-elected) knowing the perpetual and institutional well-being of the Citizenry was protected by a BNA-entrenched superior order of governance; 3) perhaps, in this more-relaxed PM-era, the MP's could be re-emancipated from their Party-Disciple straight-jackets and the Commons could be restored as an 'honourable Assembly' of 308 of constituency-representatives debating the (conscience-tempered) views of all Canadians; 4) restore the purpose of the s.54 Throne Speech and re-validate the use of the GG's ss.55-57(Fed-Prov.90) powers of Reservation, Disallowance and Withholding of Royal Assent; 5) identify the need to re-sever control of the Privy Council from the Prime Minister's Office (merged-for-efficiency in a WWII temporary, emergency Order in Council PC 1940-1121, March 25, 1940) In short, re-establish the BNA/Constitution "As-written " - because if we do not restore the de facto to its de jure state.... what rules ARE we following? Who is in a position to change these "unwritten" rules and who is in a position to stop any proposed change? Would you play a "bloodsport" where the Home Team is permitted to change the rules in the middle of the game? You may not have considered the possibility before and need to do some research before accepting whether there actually IS a problem, whether it NEEDS solving and therefore whether this solution is worth considering. Two assertions: "right-under-our-nose is one of the hardest place to examine" and "there is no shame in turning back when you discover you are on the wrong path -rce 2006" rce robertede@gmail.com I'll send you the attachments by email Two Attachments Order in Council PC 1940-1121 One Page 1688-present Evolution of our "Similar in Principle" Constitution Backgrounder Plain Language Version of Canada's Constitution Acts 1867-1982

Nexen & CNOOC -- Play Hard-ball, Canadian-style

Robert Ede robertede@gmail.com
To: hill times
(ed note - MODIFIED from Earlier post with different focus) Acquisition of (under-capitalized) Nexen is just another step in China's plan to "take care of itself"   -- Canada should do the same thing! Dear Gentlemen and friends, May I suggest that the Industry Minister not approve the sale of the Canadian assets of Nexen to the Sovereign entity CNOOC , but that we give our blessings to the sale of the balance of Nexen worldwide assets. Propose to CNOOC that the 65% of the Long Lake Project and the 7.23% of Syncrude that are the Cdn assets of Nexen become a joint venture with a Sovereign entity of Canada - say 60% Crown (perhaps thru the CPPIB with $500million coming in every month!) and 40% CNOOC. The math will be tricky because CNOOC already owns 35% of Long Lake - acquired as in a distress sale recently from OPTI Canada (see below), PLUS, Sinopec owns ~9.0% of Syncrude,  purchased in 2010 from ConocoPhillips Co.  Despite that complexity, the Canadian Crown must ensure that the total Long Lake Project remains, at minimum, 51% Canada/CPPIB,  and that the TOTAL of both the existing Sinopec 9% share+ the proposed 7.23% CNOOC (via Nexen) share in Syncrude is also be (at minimum) a 51-49 joint asset. The Nexen $15Billion agreement will have to be amended to exclude the Canadian assets (that shouldn't matter to Nexen shareholders - as long as they receive the same premium to TSE-price), but assuming the CDN assets are $5-7billion of the $15 billion...51% of that $5-7Bn is a relatively medium-sized deal for the largest(by a hair) $165.8 Billion Pension fund in Canada. Long Lake was floundering and that's why the first 35% of Long lake was so easily acquired by CNOOC from OPTI Canada Inc last yr If China/CNOOC balks at the arrangement - nationalize the Canadian assets (but pay Nexen) .... this IS China we're talking about ....they ain't overpaying and they ain't stupid.  Talk about having a "National Energy Program" - we're squabbbling internally over peanuts in revenue ....they're BUYING the assets! All China really want is to learn how to apply the "OrCrude" system for Steam Assisted Gravity Drainage (SAGD) - an OPTI-proprietary technology-  to develop China's OWN oil sands in Junggar Basin in the northwestern region of Xinjiang (Reuters Aug 22/12) excerpted below --- read the whole thing before deciding/approving anything Don't waste this opportunity to play in the big leagues ... don't let the pre-existing (and awaiting Chinese approval) Scotiabank and/or Manulife deals interfere with a sound Canadian-sovereignty decision. After all who "owns" the resource-in-the-ground? Who granted the land-lease, in exchange for a few dollars in Royalties?  As a Canadian, I must insist that the Stewards of the Crown's Assets and Treasury take the long-term view on the Nexen sale of these Crown-in trust Assets. Buy a controlling share of them, invest in the joint-development and let's all reap (at minimum) a 51% of our own harvest. rce BEIJING/HONG KONG, Aug 22 (Reuters) - CNOOC's planned $15 billion purchase of Canada's Nexen will make the Chinese state energy giant the operator of a major oil sands project for the first time, giving Beijing the expertise to be able to tap massive unconventional oil reserves at home. China estimates the oil-soaked sands it sits on could hold as much as 14.5 billion barrels, which would be double the country's proven oil reserves. It also estimates it has huge reserves of heavy oil and shale oil -- oil trapped in shale formations. But the world's second-largest oil consumer has pumped little from domestic sands and shale so far as Beijing focuses on Canada's oil sands industry -- the world's third-largest oil deposit -- and cleaner unconventional gas resources at home. China will eventually need the oil at home to fuel its expanding economy and keep expensive imports in check, and the purchase of Nexen, which would be China's largest overseas acquisition if it wins Canadian and U.S. regulatory approval, would give it new technology and operational experience to help extract its domestic oil. "The Chinese companies must learn both ends, technology and its operational application," said Al Troner, president of Houston-based Asia Pacific Energy Consulting. "It is definitely not something that Joe Shmoe comes into and can do efficiently on their own." "Key benefits (of buying Nexen) include gaining operatorship of key oil sands assets" and improving the economics of projects with an oil sands producing technology known as Steam Assisted Gravity Drainage (SAGD), CNOOC said in a presentation to investors on July 23 after announcing its bid for Nexen. Among Nexen's international portfolios that CNOOC would take over is the operation of Nexen's Long Lake project in Alberta, Canada, a major project in the Athabasca oil sands region, and its oil sands technology. TECHNOLOGY RIGHTS Nexen is a 65 percent owner and operator of the geologically complicated Long Lake project, expected to have a production capacity of 72,000 barrels of bitumen per day and upgrading capacity of 58,500 barrels per day. Tar-like bitumen needs to be upgraded into synthetic oil for use in refineries in order to produce gasoline or diesel. Long Lake is also the first Canadian bitumen project to combine SAGD with an upgrading technology called OrCrude that can help producers consume less natural gas in the process of generating steam used to pump bitumen to the surface. The process of SAGD, widely used in Canada, involves injecting steam into the earth to loosen up bitumen so it can be pumped to the surface. Nexen has the exclusive right to use the OrCrude technology with Canadian oil sands company OPTI -- bought by CNOOC for $2.1 billion last year -- within certain parts of Long Lake, Nexen said in its 2011 annual report. Nexen also has the right to use it elsewhere in Canada and most of the rest of the world, subject to certain rights for OPTI to participate, Nexen said. Excerpt end -continued  There is no shame in turning back, when you discover you are on the wrong path - rce 2006

... "but without so much power that fundamental rights would be at risk ..."

Why a Constitution? (adapted from www. whitehouse. gov/our-government/the-constitution)

The need for the Constitution grew out of problems with (the Articles of) Confederation, which established a "firm league of friendship" between the provinces/ states.

.......

The Constitutional Convention

A chief aim of the Constitution as drafted by the Convention was to create a government with enough power to act on a national level, but without so much power that fundamental rights would be at risk.

One way that this was accomplished was by arranging an Hierarchy of power, duty and responsibility. At the top is the Executive Power comprised of the reigning Monarch (obligated by convention/history to accept Her/His U.K. Privy Council Ministers' Advice) , the Governor General, standing in the Monarch's place in all ways (save an ultimate, un-appealable, complete veto on all things Canadian that was retained by the Monarch-in Council) assisted and advised by the Queen's Privy Council of Canada.

As a Constitutionally-Limited Monarchy - all power and Authority flows FROM the Sovereign and all responsibilities, duties, loyalty, fealty ie Accountability is owed only TO the Sovereign. This system is fundamentally distinct/different from a Democracy where all power/Authority frows from the people (who are sovereign).

A Constitutionally-Limited Monarchy is also fundamentally distinct/different from a Republic (No Monarch) where power/Authority may flow from an icon (ie a flag), or a document, or a committee of elites representing the State-Religion, or the Military, or Academia, or Land Barons, or a political philosophy, or an ideological Party or a big/medium/small commitee/Assembly of representatives (elected and/or appointed) from any/all/some/one constituency of like-minded individuals/groups  - the possibilities are endless ... and all possibilities have been demostrated/attempted over time.

Below the Executive is the Legislative Power comprised of the Monarch, An Upper House and a Lower House. In addition (a Distribution of Legislative) powers of (the ConFederal and Provincial) government(s) was created to allocate the duties of various/many responsiblities/duties, on an exclusive, or joint or flexible-in-the-future basis - the distribution of Confederal vs Provincial powerrs is stated as being a differentiation of "Matters of Classes of Subjects  ...not be deemed .. of a local or private Nature" vs "Matters of a merely local or private Nature".

The hierarchical nature of the system was to create checks and balances on all of the officeholders of these powers to assure that no one branch/ order/ level/ office/ person of government gained supremacy. This concern arose largely out of the experience that the delegates had with the King of England and his powerful Parliament. .....

The Constitution of Canada began as an Act of the UK Legislative & Executive "British North America Act 1867" and was renamed (along with many similarly Named, but differently Dated Acts) the "Constitution Act" in 1982. All the provisions of the original Legislation (unless amended, repealed, replaced, supplanted or spent-by-time or spent-by-deed) remain in effect.

In addition every Act or Proclamation made pertaining to Canada since 1763 (unless amended, repealed, replaced, supplanted or spent) also remains in effect.

Putin - prefers Mr. O'Bama (sp) "an honest person who really wants to change much for the better"

President Barry has a (my way or the highway) Big Government Buddy & Pol-Economic supporter


PreScript .... just in case you forgot ....
Open Mic - President Obama Assures Medvedev of flexibility Nuclear missile defense after election

Vladimir Putin defiant on Syria, Pussy Riot, says Mitt Romney "mistaken"

MOSCOW - President Vladimir Putin signalled in an interview aired on Thursday that Russia was not ready to shift its stance on Syria, and suggested Western nations were relying on groups such as al Qaeda to help drive President Bashar al-Assad from power.
Putin held out hope for an end to a dispute with Washington on missile defence if President Barack Obama were re-elected in November, telling Russia's RT television he was "an honest person who really wants to change much for the better".
Read whole news item: http://www.vancouversun.com/news/Vladimir+Putin+defiant+Syria+Pussy+Riot+says+Mitt+Romney+mistaken/7199370/story.html#ixzz25tFvDzOq

"Democratic"Senate IS doomed -Re-Patriation & Restoration is required

Dear Mr Wiseman & HillTimes Editors,

Thank you for "Democratizing Upper House not in Harper's (nor any Lower House Power Broker's) interest"

I agree that Mr Harper doesn't really want to push the Senate Reform issue because if the Upper House gained more legitimacy, the restored power of the revitalized Senate would be taken away from the amount of power currently wielded by the Lower House (ie no NEW Crown power would be created, just its Distribution would shift)

I assert as well that the Loyal Opposition and its social-democratic brother/sister parties do not want either a more effective, nor re-legitimized Upper House for the same reason - the Commons (where their socio-politico-economic theories have a chance to influence) would LOSE its 'only-show-in-town' oomph if the Senate's original mandate was restored.

While I agree with your "Meet the New Boss ... Same as the Old Boss" critical assessment of the behaviours of our government-of-the-day,  I will ask you to re-examine the sources for your views on the Purpose and Constituency-base of the Upper House:

- "As in the United States, the Senate was created to represent the states/provinces. In Canada, the provincial governments and premiers are more muscular actors than their American counterparts are in a wider range of policy fields .....";

-" An elected Senate would probably reinforce the power of the smallest provinces such as P.E.I. The four Atlantic provinces and three territories, with just seven per cent of the population, have nearly a third of the Senate’s seats."

The Senate was designed and intended to follow the footsteps of a) its colonial antecedent, the Legislative Council from the Constitutional Act of 1791 (appointed for life, minimum age required) and b) its "similar in Principle" U.K. equivalent, the House of Lords (Spiritual -permanent ex-officio offices, and Temporal -hereditary titles to land owners, and nobles).

The interests of the Crown (ie the Monarch-in-its-U.K.-Council) were calculated to be more likely protected by those deemed "patrician" in Canada than might be expected from those of us considered "plebeians".

As a result, Senators of Canada:

- 1) are equally culled from 4 established Divisions PLUS added representation for the latterly-recognized newcomers to Confederation - Newfoundland-Labrador and the 3 Territories;

- 2) are representatives of the Propertied Class (hence the net-worth and net-equity property ownership qualifications - sadly the only Cdn gov't dollar amount never-adjusted for Purchasing Power Parity); 

- 3) do NOT represent any political party (as you accurately and politely noted in the Sept 3/12 piece) ;

- 4) were intended as a Check & Balance on the Non-propertied Class's elected-assembly -the Lower House aka the Commons

George-Etienne Cartier  - "to protect the regional interests and also a power of resistance to oppose the democratic element" 

Sir James Lougheed - "bulwark against the clamour and caprice of the mob" 

Cicero (quote is carved in oak frieze of our Senate Speaker's chambers) - "It is the duty of the nobles to oppose the fickleness of the multitude

The fact that these (and other) je jure  BNA/Constitutional "truths" are NOT reflected in today's de facto machinery-of-government is what needs public revelation and constitutional restoration -no amendment process required - the provisions are already there.

Nescience of this type of contra-BNA Legislative AND Executive government-of-the-day operations/institutions is almost universal (I blame the last few generations of teachers, not the students) and as a result, modern-day  problems with right-under-our-noses solutions-rooted-in-the-BNA/Constitution seem invisible/ inconsequential/ "off the radar" to the average Canadian "armchair Prime Minister" and his/her info-sources the parliamentary pundit, the political commentator/correspondent and the TV talking-head.

Rce

Robert Ede,     

Spokesman

The Majority of Canadians P.A.C.
Direct 416.819.7333

 

"All truth passes through three stages. First, it is ridiculed. Second, it is violently opposed. Third, it is accepted as being self-evident." -Arthur Schopenhauer (1788–1860)

BACKGROUNDER AND EXPANDED VERSION  --  if space and interest permits

As every student of the Constitution/BNA Act 1867(as amended) knows the Senate intended to follow the footsteps of its colonial antecedent, the Legislative Council from the Constitutional Act of 1791 (appointed for life, minimum age required) and its "similar in Principle" equivalent, the House of Lords (Spiritual -permanent ex-officio offices and Temporal -hereditary titles to land owners, and nobles)

The Upper house was to be a check and a balance for the Lower House.

 "G.E. Cartier  -"to protect the regional interests and also a power of resistance to oppose the democratic element"

Sir James Lougheed - a "bulwark against the clamour and caprice of the mob"

Cicero (carved in oak frieze of our Senate Speaker's chambers) - "It is the duty of the nobles to oppose the fickleness of the multitude"

The interests of the Crown (ie the Monarch-in-its-U.K.-Council) were calculated to be more likely to be protected by those deemed "patrician" in Canada than might be expected from the "plebeians".

From this history-fed intention flows the "unique within 1867 to 2012 Canada" Dollar-amount Qualifications (s.22) /Disqualifications (s.31) regarding a Senator's net-worth and net-equity property-ownership and the Upper House Members special Oath of Allegiance and  Integrity on the Fifth Schedule "...that I have not collusively or colourably obtained a Title to or become possessed of the said Lands and Tenements or any Part thereof for the Purpose of enabling me to become a Member of the Senate of Canada ..."

IV. LEGISLATIVE POWER

The Senate

22. In relation to the Constitution of the Senate Canada shall be deemed to consist of Four Divisions:

1. Ontario;
2. Quebec;- Quebec by twenty-four senators; 
3. The Maritime Provinces, Nova Scotia and New Brunswick, and Prince Edward Island;the Maritime Provinces and Prince Edward Island by twenty-four senators;
- ten thereof representing Nova Scotia, ten thereof representing New Brunswick, and four thereof representing Prince Edward Island; 
4. The Western Provinces of Manitoba, British Columbia, Saskatchewan, and Alberta;the Western Provinces by twenty-four senators,
- six thereof representing Manitoba, six thereof representing British Columbia, six thereof representing Saskatchewan, and six thereof representing Alberta 

which Four Divisions shall (subject to the Provisions of this Act) be equally represented in the Senate as follows: 

-Newfoundland shall be entitled to be represented in the Senate by six members;
-the Yukon Territory, the Northwest Territories and Nunavut shall be entitled to be represented in the Senate by one member each.
ENDNOTE (11)

• (11) As amended by the Constitution Act, 1915, 5-6 Geo. V, c. 45 (U.K.) and modified by the Newfoundland Act, 12-13 Geo. VI, c. 22 (U.K.), the Constitution Act (No. 2), 1975, S.C. 1974-75-76, c. 53, and the Constitution Act, 1999 (Nunavut), S.C. 1998, c. 15, Part 2. The original section read as follows:
  
  • 21. The Senate shall, subject to the Provisions of this Act, consist of Seventy-two Members, who shall be styled Senators.

• The Manitoba Act, 1870, added two for Manitoba; the British Columbia Terms of Union added three; upon admission of Prince Edward Island four more were provided by section 147 of the Constitution Act, 1867; the Alberta Act and the Saskatchewan Act each added four. The Senate was reconstituted at 96 by theConstitution Act, 1915. Six more Senators were added upon union with Newfoundland, and one Senator each was added for the Yukon Territory and the Northwest Territories by the Constitution Act (No. 2), 1975. One Senator was added for Nunavut by the Constitution Act, 1999 (Nunavut).

rce

 

Teachers (Civil Service) Wage-Freeze Legislation- Use S 33 the Notwihstanding clause!

Teacher (etc) Wage Freeze Legislation(s)

Make things simple - use the notwithstanding clause to put a 5yr hold on litigation, appeals and Supreme Court hearings

The Ontario (shouldn't they be classified as professional contractors rather than "workers") Teachers (soon to be followed down this "clawback" or freezr path, by all Civil Service Unions, as wage/benefit "parity w the private-secvtion PART 2 hits every sector, order and type of government "worker") believe they have the "constitutional" right (rooted in freedom of association) to collectively bargain based on an imperfectly decided "Health Services and Support...Assn vs British Columbia, 2007 SCC 27"

The imperfections of the Health Services decision were cited in Ontario (Attorney General) v. Fraser, 2011 SCC 20 in red below

Let's save a lot of time and money by "expressly declaring" that the Ont Teacher Freeze Wages etc legislation operates "notwithstanding" all the (taxpayer paid) union-dues-fed legal wrangling and court costs.

Let's face it, across the country, the Unionized-Gov't-Monopoly-Remuneration pendulum has to start swinging back, whether any of us likes it or not - Section 33 in blue below

rce

 

FROM Constitution Act 192 (as amended)

Exception where express declaration

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
Marginal note:Operation of exception
(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.
Marginal note:Five year limitation
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
Marginal note:Re-enactment
(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).
Marginal note:Five year limitation
(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

FROM 

 Ontario (Attorney General) v. Fraser, 2011 SCC 20

Per Charron and Rothstein JJ.:  Section 2(d) protects the liberty of individuals to associate and engage in associational activities.  It protects the freedom of workers to come together, to form a bargaining position and to present a common and united front to their employers.  It does not protect a right to collective bargaining nor does it impose duties on others, such as the duty to bargain in good faith on employers.  To the extent that Health Services constitutionalized collective bargaining, it was not correctly decided.  It should be overturned thus disposing of the constitutional challenge in this case. 

                    This Court may overrule its own precedents, but it should only do so where there are compelling reasons.  The question in every case involves a balancing:  Do the reasons in favour of following a precedent ― such as certainty, consistency, predictability and institutional legitimacy ― outweigh the need to overturn a precedent that is sufficiently wrong?  In this case, compelling reasons exist for overturning Health Services:  the error in Health Services concerns a question of constitutional law and is not susceptible to being corrected in a lasting way by the legislative branch; Health Services strayed significantly from other sound precedents, including Dunmore, with respect to the purpose of Charter protection for freedom of association; the constitutionalization of collective bargaining, as envisaged in Health Services, is not workable without other elements of modern labour legislation in place; and there has been intense academic criticism of Health Services.

                    Health Services was an express break with prior decisions of this Court on s. 2(d), including Dunmore.  This break came when the majority of the Court found that s. 2(d) required that government legislate to facilitate collective goals which an association was formed to pursue, rather than protecting the freedom of association itself.  In Dunmore, the requirement that government provide legislation to protect workers was anchored in the proposition that certain workers could not associate without government intervention.  The majority in Health Services focussed on the goals of an association and the enhancement of those goals, rather than the ability of the claimants to associate (which they already had done).  An application of the actual holding in Dunmore would have asked only if the government substantially interfered with the ability to associate.

                    Health Services erred in concluding that s. 2(d) protects collective bargaining and obliges parties to bargain in good faith for five reasons.  First, Health Services departed from sound principles established in this Court’s precedents on the nature and scope of s. 2(d).  The purpose of s. 2(d) is to protect individuals rather than groups per se.  Health Services reinterpreted an individual freedom as giving rise to collective rights with no individual rights foundation. This reinterpretation of the scope of s. 2(d) was a departure from previous jurisprudence that is not justified by the purpose of the Charter guarantee.

                    Second, s. 2(d) protects freedoms not rights.  According to Health Services, if s. 2(d) protected only the ability of workers to make collective representations and did not impose a duty on the employer to bargain in good faith, it would fail to protect the right to collective bargaining.  This proposition transformed s. 2(d) from a freedom into a positive right by imposing an obligation to act on third parties (i.e. the employer).  A right to collective bargaining is also not derivative of a freedom ― it is a standalone right created by the Court, not by the Charter.  A derivative right is one that is necessary to allow individuals to exercise a fundamental freedom.  No individual employee has a right to require an employer to meet and make a reasonable effort to arrive at an acceptable employment contract.  To grant a right to collective bargaining under s. 2(d) purportedly as derivative of the freedom of association is not consistent with the approach taken by this Court in its derivative rights jurisprudence in relation to the Charter.

                    Third, s. 2(d) does not empower the Court to privilege certain associations over others.  The Court’s earlier cases did exhibit a content‑neutral approach to freedom of association in the sense that they did not claim to privilege particular associations.  Health Services erred in saying that these approaches were not purposive.  Health Services suggested that a “generic” approach to defining freedom of association is inappropriate because different groups must have different freedoms.  However, the context that is relevant to a purposive interpretation of Charter freedoms is not the context of the individuals who happen to be exercising that freedom in a given case.  Rather, a purposive interpretation of s. 2(d) requires that one place freedom of association in its linguistic, philosophic and historical contexts.  The origins of the concept, the words used to describe it, and the philosophical principles on which it relies will define the scope of s. 2(d) protection.  The extent of that protection should not change depending on who is exercising their s. 2(d) rights.  The protection of fundamental freedoms should not involve the Court adjudicating the relative values of the way in which individuals exercise those freedoms.  Just as this Court has not adjudicated the relative value of a religion or its tenets under s. 2(a) or assessed the relative value or content of a given exercise of freedom of expression under s. 2(b), so too should this Court not privilege some associations over others under s. 2(d).

                    Fourth, s. 2(d) does not afford constitutional protection to contracts.  Although Health Services purported to constitutionalize the process of collective bargaining rather than its fruits, it in fact granted constitutional protection to the collective agreements on the basis that they were the fruits of that process. 

                    Fifth, s. 2(d) should be interpreted in such a way as to afford deference to the legislative branch in the field of labour relations.  Health Services erred in removing decision‑making power on this question from Parliament and the provincial legislatures.  While the courts are responsible for safeguarding the ability of individuals to do collectively that which they have the right to do as individuals, the judiciary is ill‑equipped to engage in fine adjustments to the balance of power between labour and management in the labour relations context. 

                    Moreover, the reasons advanced in Health Services for extending protection to collective bargaining under s. 2(d) ― Canadian labour history, Canada’s international obligations, and Charter values ― do not support conferring a constitutional right to collective bargaining and imposing a duty on employers to engage in collective bargaining. 

                    The argument that a right to collective bargaining which includes a duty on employers to bargain in good faith is a pre‑statutory feature of Canadian labour law, made in Health Services, contradicts established accounts of the history of labour relations in Canada and has recently been the subject of intense academic criticism.  While the duty to bargain in good faith may be a fundamental precept of the Wagner model of collective bargaining, it is not a fundamental precept of collective bargaining as it was understood before the introduction of the Wagner Act or as it is still understood today in many parts of the world.

                    Nor does international law support constitutionalizing collective bargaining rights.  In Health Services, the majority relied on the proposition that collective bargaining is an integral component of the freedom of association under international law.  The majority relied in particular on ILO Convention No. 87.  In doing so, it committed two errors.  While Canada has ratified ILO Convention No. 87, that Convention deals only with freedom of association and does not at any point specifically discuss collective bargaining.  The majority also conflated two distinct ILO Conventions by citing Convention No. 87 but using words from Convention No. 98.  Canada has not ratified Convention No. 98 and has no obligations under that Convention.  Even if Convention No. 98 were applicable to Canada, Health Services would still have erred in relying on that Convention to constitutionalize a version of collective bargaining that includes a duty to bargain in good faith.  While Convention No. 98 provides protection for a process of collective bargaining, it conceives of collective bargaining as being a process of “voluntary negotiation” that is fundamentally distinct from the model of collective bargaining incorporated in the Wagner model.  Convention No. 98 does not contemplate the imposition of a duty on parties to bargain in good faith. 

                    Nor did invoking Charter values in Health Services support constitutionalizing collective bargaining rights.  Health Services maintained that the recognition of a good faith collective bargaining right is consistent with and promotes other Charter rights, freedoms and values:  namely, human dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy.  A duty to bargain in good faith may achieve those ends.  However, either the Charter requires something or it does not.  The role of the Court is to determine what the Charter requires and what it does not and then apply the requirements it finds to the case before it.  It is not to simply promote, as much as possible, values that some subjectively think underpin the Charter in a general sense.  As s. 2(d) is silent on questions of economic and social policy, this Court may not intervene on such matters in the absence of a legislative or constitutional grant of authority.

                    Finally, the majority’s approach to collective bargaining in particular and s. 2(d) in general articulated in Health Services is unworkable.  It extends constitutional protection to the duty to bargain in good faith without importing other aspects of the Wagner framework and by purporting to protect the process of collective bargaining without also protecting its fruits, neither of which is tenable.  For a duty to bargain in good faith not to be an illusory benefit, there must be both a way of dealing with bargaining impasses as well as an effective remedy for persistent breaches of a duty to bargain in good faith.  The first requires that there be some default mechanism for resolving the dispute in case an impasse is reached — such as striking or binding arbitration — while the second may require, in extreme circumstances, the imposition by an arbitrator of particular terms of a collective agreement.  Each of these goes well beyond protection of a mere process and results in the protection of a particular substantive outcome.  The majority’s inability to separate substance and process, and the consequent constitutionalization of collective bargaining terms demonstrates the unworkability of the distinction between substance and process asserted in Health Services.

                    The AEPA does not violate s. 2(d) of the Charter.  By enacting the AEPA, the legislature precisely addressed this Court’s ruling in Dunmore.  The text, context and purpose of the AEPA clearly demonstrate that the legislature intentionally opted not to include a duty on employers to engage in collective bargaining with employee associations.  Section 5 of the AEPA cannot be read as imposing a duty to bargain in good faith.  The words of s. 5 are unambiguous:  they provide employee associations the opportunity to make representations to an employer.  The only obligation on an employer is to provide the employee association with the opportunity to make representations and to listen if they are oral or read and acknowledge them if they are written.  To find otherwise, would be to ignore the grammatical and ordinary meaning of the words, and the purpose of the AEPA, and would create ambiguity where none exists.  Moreover, nothing in the explicit purpose in s. 1 of the AEPA or the clear words of the Minister who introduced the AEPA support the view that agricultural employees have a right to require agricultural employers to engage in collective bargaining.

                    As for the issues under s. 15, the category of agricultural worker does not rise to the level of an immutable (or constructively immutable) personal characteristic of the sort that would merit protection against discrimination under s. 15. 

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"All truth passes through three stages. First, it is ridiculed. Second, it is violently opposed. Third, it is accepted as being self-evident." -Arthur Schopenhauer (1788–1860)