The Prime Minister, Stephen Harper, has announced that he will no longer be making any Senate appointments. Not that he had been making any recently ― in the last couple of years in fact. However, just last month, for the purposes of contesting Aniz Alani’s court challenge to the apparent policy of non-appointment, the federal government’s lawyers had told the Federal Court that “there was no ‘decision not to advise the Governor General to fill the currently existing [Senate] Vacancies’.” So a clear statement to the contrary is an interesting development.
Actually, it is a pretty shocking one. The constitution, in no uncertain terms, requires Senators to be appointed. Section 32 of the Constitution Act, 1867, provides that “[w]hen a Vacancy happens in the Senate by Resignation, Death, or otherwise, the Governor General shall by Summons to a fit and qualified Person fill the Vacancy” (emphasis mine). The word “shall” in a statutory ― or constitutional ― text indicates that the action is mandatory, not discretionary. And while the constitutional text is silent on the matter, we all know, and in its response to Mr. Alani’s challenge the federal government strenuously argues, that there is a constitutional convention dictating that in “summoning” persons to the Senate, the Governor General acts on the advice of the Prime Minister. If the Governor General has a constitutional duty, but can only exercise it at the Prime Minister’s direction, it follows that the Prime Minister has a duty to tell the Governor General what to do.
It is worth noting that the government’s response to Mr. Alani’s challenge does not allege the contrary. Rather, the government is essentially saying that the Prime Minister is entitled to get away with it, because the federal court, or perhaps no court, can issue a ruling to the contrary, notably because such a ruling would involve the “enforcement” of a constitutional convention. This may indeed be so. I noted here that Mr. Alani’s claim faced some real difficulties, and although in Alani v. Canada (Prime Minister), 2015 FC 649 the Federal Court dismissed the government’s motion to strike it, it is still not clear that the Court can grant the remedies that Mr. Alani seeks. Nevertheless, an argument that a duty is not enforceable by a court is not the same thing as an argument that the duty does not exist at all. And if the government does not make the latter argument in trying to prevent the courts from enforcing the duty in question, that’s probably because it knows that such an argument would be risible.
Mr. Harper’s announcement, then, is an open declaration of a resolve to act in dereliction of his constitutional duty. And contrary to what some might think, this problem does not only become serious once the Senate is short-handed enough for its functioning to be seriously impaired. At that point, it is true, an additional constitutional violation may arise, in that the Senate’s role in the constitutional “architecture,” which the Supreme Court has said is constitutionally protected, would be compromised. But that’s a separate matter from the fact that the head of the government of Canada is openly defying the constitution and flouting the Rule of Law. That defiance, in my view, needs to be stopped as quickly as possible. The question, then, is how and by whom.
Perhaps the Federal Court (in the first instance) and eventually, presumably, the Supreme Court, might do it in response to Mr. Alani’s challenge. Wittingly or not, Mr. Harper has removed one of the difficulties with that case to which the federal court pointed in dismissing the motion to strike (as I had done earlier), which is that it is difficult to prove that a course of inaction amounts to a judicially reviewable “decision” not to act. Court have in the past treated media announcements as evidence of decisions not to act ― perhaps most notably in Canada (Prime Minister) v. Khadr, 2010 SCC 3,  1 S.C.R. 44. Still, the chief obstacle to Mr. Alani’s case was always the involvement of constitutional conventions, and the courts may end up concluding that they cannot act.
A somewhat different judicial avenue exists too, however. A province could refer the issue to its court of appeal for an advisory opinion. The attraction of the reference route, in comparison with Mr. Alani’s challenge, is that Canadian courts have historically felt freer to deal with constitutional conventions in that context ― notably in the Patriation Reference. The various jurisdictional and remedial questions that further complicate Mr. Alani’s case would also not arise on a reference. The problem, of course, is whether any provincial government would have the political will to engage in this process. Because Mr. Harper’s stated intention in refusing to make Senate appointments is to put pressure on the provinces to agree on Senate reform, a province opposed to reform, such as Québec, would have a good reason for doing so, but whether that will be enough remains to be seen.
The most certain, but also the most radical, solution of all is an intervention by the Governor General. Back in January, I suggested that the Governor General, if faced with a recalcitrant Prime Minister, should start appoint Senators on his own. That idea did not meet with much approval. It would, people said, undermine the conventions of responsible government, requiring the Governor General to act on ministerial advice. Very well then. Since there seems to be no alternative, let the Governor General dismiss Mr. Harper from office. Not in a few years’ time, when the Senate’s functioning is impaired. Now. Now that Mr. Harper has openly expressed his commitment to violating the constitution. I wrote, in my response to the criticism my suggestion of autonomous appointments, that “a Governor General will not dismiss a Ministry, except I suppose in the absolutely clearest of cases.” Well, we have an absolutely clear case in front of us.
It was bad enough when the leader of the opposition was promising that, if elected, he would fail to do his constitutional duty to fill the vacancies in the Senate when they occur. But for the sitting Prime Minister to announce his resolve to flout the constitution is worse. The person responsible for maintaining the Rule of Law and order in society cannot be engaged in civil disobedience. And since in our constitutional system judicial remedies for this situation are, at best, uncertain, it is not improper for the Governor General to resort to the political remedy that the constitution gives him. Once again: Mr. Johnston, dismiss Mr. Harper now.