Is Tom Mulcair planning “side deals” with Quebec to achieve Senate abolition?

Six months after Tom Mulcair became leader of the New Democratic Party, he appeared on the September 16th, 2012 edition of Global’s West Block. When asked by host Tom Clark about the prospects of reopening the Constitution, Mulcair said that “reopening the constitution, when we look at the disaster that was Meech and Charlottetown, is the last thing we should be thinking of.”

But by the time the legal and ethical problems of a handful of Senators started making headlines at the beginning of 2013, reopening the Constitution to abolish the Senate moved up significantly on Mulcair’s list of priorities. And by the spring, Mulcair had launched the Roll Up The Red Carpet campaign to rally Canadians behind the NDP’s policy to get rid of the upper chamber.

Because Senate abolition requires the unanimous agreement of the provinces, Mulcair has repeatedly faced questions about how he would get all the premiers on board. In particular, how would he satisfy Quebec’s traditional demands for more powers and constitutional recognition of its unique status within Canada? The same issues, in fact, that led to the disastrous Meech Lake and Charlottetown accords. In response, Mulcair has been adamant that as prime minister his discussions with the premiers would be limited to abolishing the Senate.

But on June 7th, during an interview with Robert Fife on CTV’s Question Period, Mulcair raised the possibilty of what he called “side deals” with individual provinces, including Quebec, to get them to sign off on Senate abolition.

Using bilateral agreements between the federal government and Quebec to meet some of that province’s traditional demands is not a new idea. In 2009, professors David R. Cameron and Jacqueline D. Krikorian published an essay in Policy Options that advocated “dealing with constitutional issues concerning la belle province in a bilateral rather than a national context.”

Cameron and Krikorian point to section 43 of the Constitution which “allows for a province and the federal government to address constitutional issues particular to one province without involving the rest of the country.” This is the same amending procedure used to change Quebec school boards from religious based to linguistic based, which Mulcair refers to often when he talks about abolishing the Senate. If he’s planning to reach similar bilateral agreements to get Quebec’s okay on Senate abolition, it may explain why Mulcair regularly mentions his role in getting the Quebec school board amendments passed.

As for the substance of the bilateral side deals with Quebec, New Democrats outlined a constitutional offer to Quebec when they tabled a bill to repeal the Clarity Act. Section 9 of the NDP’s so-called “unity bill” proposes the following:

For greater certainty, the question concerning the constitutional change may include proposals to implement recognition that the Québécois form a nation within a united Canada, such as proposals relating to

(a) the integration of Quebec into the constitutional framework;

(b) the limitation of federal spending power in Quebec;

(c) permanent tax transfers and associated standards; and

(d) the Government of Quebec’s opting out with full compensation from any programs if the Government of Canada intervenes in areas of exclusive provincial jurisdiction.

(For more on these proposals see Paul Wells here and here.)

In addition, during Mulcair’s appearance on Question Period, he specifically referred to the Quebec government’s concern regarding its “proportion of representation in parliament as whole.” In the Charlottetown Accord, this concern was addressed by guaranteeing Quebec 25% of the seats in the House of Commons forever, regardless of the size of its population. In 2011, New Democrats tabled a private members bill with the same measure except it would have guaranteed Quebec 24.3% of Commons seats in perpetuity. Could this be part of a quid pro quo to get Quebec’s approval for Senate abolition?

Interestingly, a few days after the Fife interview, Mulcair appeared on CBC’s Power and Politics, and despite a direct question by Rosemary Barton on how he’d get Quebec to agree to Senate abolition, Mulcair was silent on the prospect of side deals.

Whether you agree or disagree with abolishing the Senate, if Tom Mulcair is planning to offer Quebec (and other provinces) “side deals” in exchange for going along with Senate abolition, he has a duty to explain to Canadians exactly what he’s prepared to put on the table. Would these side agreements include constitutional amendments under section 43? Would they be non-constitutional bilateral agreements between the federal government and Quebec? Could some be legislated by the federal government alone?

Regrettably, Canadians don’t know the answers to these questions because Tom Mulcair has not been straightforward about his intentions over the past two years. What we do know is this: Based on legislation put forward by New Democrats, these potential “side deals” with Quebec would significantly change the Canadian federation.

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