In news which perhaps did not receive the attention it deserved, the federal leader of the opposition, Thomas Mulcair, announced that, if he becomes Prime Minister following the next federal election, he would imitate the current Prime Minister and refuse to appoint any Senators. La Presse quotes him as saying that
[t]he Senate is like a grape that you leave out to dry on the vine. It’s not good any more after that. We’ll leave it out to dry, it will be over, and it won’t be there anymore. [Translation mine]
Mr. Mulcair is, supposedly, “determined to work with all of the provinces on the Senate’s abolition,” and firmly set on never appointing Senators ever. As for Stephen Harper, he has not, to my knowledge, foreclosed the possibility of doing so if he wins the next election, but is also apparently uninterested in filling out the current 16 vacancies in the Senate until then. A Vancouver lawyer, Aniz Alani, has launched a lawsuit, apparently claiming that failure to appoint Senators is an infringement of section 32 of the Constitution Act, 1867, which provides that “[w]hen a Vacancy happens in the Senate … the Governor General shall by Summons to a fit and qualified Person fill the Vacancy.”
The legal merits of this claim, Mr. Alani’s standing to bring it and, most of all, its justiciability all make for very interesting questions, and I might yet return to them. For now though, perhaps as a result of consuming too much alcohol as part of New Year’s celebrations, I want to suggest a different, crazier, remedy. Arguably, at some point, if the Prime Minister fails to advise the Governor General to summon new Senators, the Governor General should just do it himself, without waiting for advice that he knows will not come.
Regardless of the availability of legal remedies for its breach, section 32 of the Constitution Act, 1867 clearly imposes a responsibility on the Governor General, since it uses the imperative “shall” (instead, for example, of the permissive “may”). Constitutional conventions dictate that the Governor General discharges this responsibility, and similar ones (for example for appointing judges) only pursuant to the ministerial advice. As the Supreme Court recently explained in Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704,
constitutional convention requires the Governor General to follow the recommendations of the Prime Minister of Canada when filling Senate vacancies. [50]
Conversely, so long as he has received no recommendation from the Prime Minister, the Governor General may not fill such vacancies. Yet that prohibition arguably presupposes that the Prime Minister will in fact act to advise the Governor General to appoint some “fit and qualified person” to fill the vacant Senate seat. What if the Prime Minister has made it clear that he will not do so?
In the Senate Reform Reference, the Supreme Court recognized that the Senate, disliked though it is by many Canadians, has a number of important functions. It is “a complementary legislative body of ‘sober second thought'” [56], in addition to providing representation for Canadian regions and “various groups that were under-represented in the House of Commons,” notably “ethnic, gender, religious, linguistic, and Aboriginal groups” [16]. It stands to reason that the shorter the Senate is of its full complement, the less effectively it can fulfill these roles.
Still in the Senate Reform Reference, the Court took the position that a course of action that would “weaken the Senate’s role of sober second thought” [60] would amount to a constitutional amendment, even though it did not modify the constitutional text. Arguably, the course of action at issue there, the enactment of (federal and, possibly, provincial) legislation that would set up purportedly “consultative” elections of Senators, would have had a clearer effect than a gradual reduction in the number of Senators. Then again, that effect too would only have been achieved gradually, as elected members would slowly have replaced appointed ones.
In any case, even if the difference might matter from a strictly legal perspective, I do not think that it does from a political one, which is what interests me here. There can be political remedies, as well as ― and even instead of ― legal ones when the government acts in violation of the constitution. Most obviously, of course, the government can be voted out of office. But that’s not the only possibility. As the Supreme Court pointed out in the Patriation Reference, Re: Resolution to amend the Constitution, [1981] 1 S.C.R. 753, if a government refuses to resign after losing a general election, “the Governor General … would be justified in dismissing the ministry and in calling on the opposition to form the government.” (882) This is an extreme case, because the ministry’s behaviour would be “a fundamental breach of convention, one so serious indeed that it could be regarded as tantamount to a coup d’état.” (882) Failure to appoint Senators is surely a less serious matter. (Though consider what happens when the Senate dwindles below its quorum, and no statutes can pass Parliament at all ― something that may conceivably happen under Mr. Mulcair’s approach, if he is unable to goad the provinces into agreeing on abolition before then.)
Short of such a dramatic step, I would like to suggest that, faced with a cabinet and a Prime Minister determined on acting in clear, if perhaps not legally sanctionable, defiance of the constitution, the Governor General may be wise to break the convention that requires him to appoint Senators only on the advice of the Prime Minister. Yes, breaking the convention is also acting in defiance of the constitution, even though this step may not be amenable to a legal remedy. But, unlike the temper tantrum of a Prime Minister who refuses to replenish the Senate simply because he does not like the way this institution operates under the existing constitution or because he does not want to attract attention his record of questionable appointments, it is a constitutional violation intended, and arguably necessary, to prevent another such violation.
Indeed, substantively, it might be a very positive step for the Senate and for Canada. The Governor General would be free from the partisan incentives that have too often prevented Prime Ministers from appointing Senators capable of providing genuine “sober second thought,” and thus might help the Senate fulfill its role as a complementary legislative chamber. Senators appointed not by an elected official but by a person who is himself an appointee would not have the problematic legitimacy to oppose the democratic will of the House of Commons, yet they would be more likely to have the capacity for independent thought which partisan hacks too often lack. They would offer a counterargument, but not a counterweight, to the House of Commons, which I think was exactly what the Senate was originally meant to do.
To be sure, even if it were to bring about a desirable result, a vice-regal assertion of independent power would be troubling and problematic. If I’m not the only one to think that this idea even deserves some thought, that would be strong evidence of something being rotten in the state of our democracy. But I for one do smell rot, when I hear the Prime Minister and the man who would be Prime Minister set out on a course of disregarding both our Parliamentary institutions and our constitution itself not only apparently without questioning the constitutional propriety of such a course, but indeed suggesting that it is the right thing to do.
UPDATE: Philippe Lagassé has pointed out to me that, pursuant to section 4 of the Federal Documents Regulation, a Senator’s commission must be signed by the Registrar ― who also happens to be a cabinet minister (specifically, Industry Minister, as prof. Lagassé explains). So presumably a defiant Governor General couldn’t just act on his own ― the Registrar would not go along. The constitutionality of this regulation, insofar as it interferes with the Governor General’s execution of the powers of his office might be questionable, but there it is. And, of course, in reality, a Prime Minister can always give the Queen a call and have her fire a defiant viceroy. In short, as Paul Wells tweeted, “the Governor General won’t help you.” And yet…
Double Aspect 
More lazy revolutionaries…
At any rate, the thought of the Governor General using his powers unilaterally is a troubling one, to say the least, but I do agree that it ultimately would be the only possible solution. It may not be as serious a constitutional crisis as, say, a Sir Charles Tupper’s refusing to step down after an election loss, it still constitutes a breach of the constitutional order. If Misters Harper and Mulcair do not like the Constitution as it stands, they should make it their platform to alter the Constitution, not simply to ignore it until they get some sort of reaction from the Provinces. As it stands, it isn’t even clear that the Provinces would fall in line. One gets a sense that Quebec and Ontario, at least, may not be in favor of eliminating the Red Chamber (which is a plank in the NDP platform), nor of giving up the substantial numerical advantage they hold in the Senate.
The sad part is that now strikes me as the perfect time to negotiate some sort of Senate reform. There is a strong Federalist Premier in Quebec, and Quebec’s separatist forces are more diminished and disunited than they have been since the the modern separatist movement evolved in Quebec. If it weren’t for that silly (and eminently ignorable fixed election legislation), the Prime Minister would have something on the order of two years to push for reform.
Maybe it is the cynical age in which we live, that politicians, rather than actually wanting to do something, would prefer to sit on their hands, do nothing and declare THAT to be the way forward.
At any rate, you have nailed it on the head. While the Governor General’s constitutional role is, 99% of the time, to do what his Government tells him, the Governor General’s larger role is to assure the good and responsible government of Canada, and if successive elected governments allow the Senate to dwindle to unsustainable levels, that good government is threatened, and the Vice-Regal representative will have little choice but to force the issue.
However, I would take it one step further. I wonder if the older Westminster imperative, that if the Sovereign (or their representative) should act against the advice of the Government (or in this case, the lack of advice), the Government would have to resign. I’m thinking specifically here of Edward VIII’s refusal to break off his planned marriage to Wallis Simpson. In the end he blinked first and abdicated, but if he had forced the issue, Baldwin’s government would have resigned. I know the situations are far from similar in most respects, but the fact remains that if the Sovereign, and by extension the Governor General of one of the Realms, were to essentially defy their Government (justified or not), could it not be argued that that Government would have to resign?