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Never do directly what you can do indirectly. Or, as Prime Minister Stephen Harper might put it, never do directly what you can do by ignoring, starving, and/or clubbing the people who stand in your way. This is a politician who likes to turn his problems into advantages — either by galvanizing his base or by making his enemies the featured acts in his fundraising campaigns.

Which explains Harper’s latest line of attack on the Senate. In fairness, he was obliged to say something about the Senate: it’s an embarrassment, not only for his party but for the federal government itself. Nine in ten Canadians want it reformed or abolished. The Supreme Court has said the government can’t do either without the consent of the provinces — and most of the provinces aren’t interested.

So with an election three months away, Harper has decided to do an end-run by declaring that his stop-gap approach to the Senate — neglecting to appoint senators — is now government policy: “We’ll entrench it simply in this way, which is that we’re just not going to make the appointments. It will force the provinces over time — who as you know have been resistant to any reforms, in most cases — to either come up with a plan of comprehensive reform or to conclude that the only way to deal with the status quo is abolition.”

Harper’s stance promptly drew criticism from NDP Leader Tom Mulcair, who berated the prime minister’s “eleventh hour conversion” (translation — he’s upset that the PM is stealing his thunder), and inspired one legal challenge — from Vancouver lawyer Aniz Alani, who previously took the PM to Federal Court over the 22 current vacancies in the Upper Chamber. Alani has now offered to withdraw his suit, without costs, if Harper agrees to send a reference to the Supreme Court on the constitutionality of his pledge to not make further appointments — which arguably would be more cost-and time-effective than letting his lawsuit wend its way through the legal system.

Alani is right to call for a fresh Supreme Court reference on the Senate, because the issue wasn’t settled by the previous one. In that judgment, delivered in 2014, the Supreme Court ruled that “it is outside the scope of S.42 (of the Constitution) to altogether strip the Senate of its powers and reduce its numbers to zero.” This clearly means the PM can’t kill the Senate by attrition — but the requirement to fill every Senate vacancy is less clear.

Harper’s position might be a legal Catch-22 of the highest order — but it also could be a winner at the ballot box. While the more honest route would be for the federal government to present a proposal to the provinces, Harper is about as likely to do that as he is to attend a First Ministers’ conference. Harper’s position might be a legal Catch-22 of the highest order — but it also could be a winner at the ballot box. While the more honest route would be for the federal government to present a proposal to the provinces, Harper is about as likely to do that as he is to attend a First Ministers’ conference.

As long as the government maintains a majority in the Senate, as Harper intends to do, the Conservatives can argue that the Upper House has powers. It can consider legislation and pass bills, fulfilling the constitutional requirements to enact and repeal laws. And since it remains the prime minister’s prerogative to order the appointment of senators from time to time, it follows that it is within his power not to appoint them as well, for periods of time determined at his discretion.

One can also argue, however, that there’s more to the Senate than just passing laws. Apart from providing “sober second thought”, the Senate was conceived as a regional counterweight to the power of the House of Commons. Seats were apportioned on a regional basis, ensuring that even if a province was shut out of government by failing to elect any members of the governing party, it would still have guaranteed representation in the Upper House. Over time, the high court noted, “the Senate has also come to represent various groups that were under-represented in the House of Commons. It served as a forum for ethnic, gender, religious, linguistic, and Aboriginal groups that did no always have a meaningful opportunity to present their views through the popular democratic process.”

If Harper stops appointing senators, a situation could arise where the Senate has no representation from certain provinces, or from certain ethnic, gender, religious, linguistic or aboriginal groups. The Senate could be whittled down to a single soul — someone who could (technically) say yea or nay to House of Commons bills, but who could not fulfil the other requirements as defined by the court.

In that context, the Senate could not be seen as having its full range of powers as outlined by the Supreme Court, since “changes that engage the interest of the provinces in the Senate as an institution forming an integral part of the federal system can only be achieved under the general amending procedure.” Furthermore, outright abolition, the court says, requires the consent of both houses of the federal Parliament, as well as the unanimous consent of all provinces.

In other words, Harper would be in breach of the Constitution unless he either appointed more senators or obtained the consent of the provinces to abolish the Senate. Which brings us to the political part of Harper’s argument — that unless he puts pressure on the provinces, by undermining their representation, they will never agree to act. The problem is that, to do this, Harper would have to violate the highest law he is sworn to uphold — the Constitution.

Harper’s position might be a legal Catch-22 of the highest order — but it also could be a winner at the ballot box. While the more honest route would be for the federal government to take the bull by the horns and present a proposal to the provinces — or put it to the people in a referendum first, to give it additional clout — Harper is about as likely to do that as he is to attend a First Ministers’ conference.

The way he figures it, he comes out ahead either way. If he succeeds in whittling down the Senate, he satisfies voters’ appetite for reform. If he fails, he can blame it on the provinces and the Supreme Court. And he can ask the party faithful for more money.

Tasha Kheiriddin is a political writer and broadcaster who frequently comments in both English and French. After practising law and a stint in the government of Mike Harris, Tasha became the Ontario director of the Canadian Taxpayers Federation and co-wrote the 2005 bestseller, Rescuing Canada’s Right: Blueprint for a Conservative Revolution. Tasha moved back to Montreal in 2006 and served as vice-president of the Montreal Economic Institute, and later director for Quebec of the Fraser Institute, while also lecturing on conservative politics at McGill University. Tasha now lives in Whitby, Ontario with her daughter Zara, born in 2009.

The views, opinions and positions expressed by all iPolitics columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of iPolitics.