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, [2010] 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.
Double Aspect 
There is another possible solution, particularly if the election in October leads, as many expect, to a hung parliament. The Governor General certainly has within his powers the right to place conditions upon appointing a government. Let us remember that the Governor General’s first duty is to assure the good and stable governance of the country, and a Governor General, when having to decide who to choose as Her Majesty’s Government, could take into account declarations by two of the potential candidate governments that they would refuse to advise him on the filling of Senate vacancies.
That being the case, the Governor General could insist that the government he chooses will fill those vacancies, making that a stipulation of forming a ministry. It’s harder to determine what would happen if a PM then reneged on the deal, but the extent of the Reserve Powers, in particular to dismiss governments, isn’t formalized in any way, so the Governor General might add “And if you don’t name new Senators within a set period, I will either dismiss your government, or refuse to take your advice, thus forcing your government to resign.”
Of course, if a majority government is elected, things get dicier. There’s no latitude to pick a government that will do what the GG requires, and at that point it is possible that, given enough time and the Senate’s shrinking beyond the point that it can reasonably do the job, that a GG will have to choose between unilaterally invoking what amounts to a Royal Prerogative, or invoking a Reserve Power and dismissing a Ministry that refuses to allow him to fulfill his constitutional role.
And really the Prime Minister’s gambit is quite ludicrous. The National Post published a few of the Provinces’ attitudes on the Senate, and they range from the Premier of Saskatchewan’s puzzling desire to abolish the Federal legislative chamber that actually, if indirectly, represents some degree of Provincial interests, to the expected rejection of abolition by the Maritime Provinces and Quebec, and even a rather cool view of the idea of turfing the Red Chamber in Ontario. In other words, there is such wide disparity that it seems unlikely that either Stephen Harper or Tom Mulcair could ever hope to achieve abolition.
Once again, Leonid, we are faced with what you so aptly call “lazy revolutionaries” (now one of my favorite catch phrases!). No one, not even the Provinces, actually have any desire to crack open the Constitution, but they’ll grandstand, make populist declarations, and will, it seems, quite literally back us into a constitutional crisis that will, no matter how it resolves itself, end with either of their governments being one of the only governments in modern Westminster history to actually be thrown out by a head of state.
Aaron, I am sympathetic to your suggestion, but then, I’m sympathetic to even more aggressive use of reserve powers to enforce the constitution. I’m not sure that those who are put off by the idea will find your proposal any more palatable than mine though. In order to be effective, the GG’s threat to dismiss a government that fails to do its duty would have to be serious. And so we might be right back where I started…
Interesting.
I guess I don’t understand why we’d have laws that can’t be enforced. What’s the point? Same goes with how the courts can’t force the government to comply with their decisions. Then technically, the government can do whatever it wants, lawfull or not. Is that not the case?
As for your last point, the current PM seems to follow a pattern of letting either the courts or other factors make decisions for him. Then he turns around and blames everybody else for his problems. It wouldn’t suprise me if that was the case again.
Look at the fixed election dates legislation. It’s unenforceable. (I have more here: https://doubleaspectblog.wordpress.com/2014/03/05/date-fixee/ ) It might help create some expectations, but it is a curious beast. Still ultimately, all attempts to bind government by law depend on the government being willing to go along. Can it do whatever it wants? Well, yes, but at some point we will have admit that the law has changed, or maybe that it no longer exists at all.
Come to think of it, the same is true of courts. If the Supreme Court decides a case in a way that ignores what the constitution says, or the way in which it was previously interpreted, we can say (as Grégoire Webber does: http://news.nationalpost.com/full-comment/gregoire-webber-changing-the-constitution-is-easy-if-youre-a-supreme-court-justice ) that the Court has simply changed the constitution.
What we are dealing with is a government that is trying to change the constitution, and may well get away with it.
The chief difference is that a hung parliament presents a unique opportunity for the Governor General to invoke fully recognized constitutional authority. We don’t have a lot of modern precedent go on, but we do know that a Governor General holds the power to impose commitments and limitations upon a government, particularly a minority government, and that the precedent of making good on his word when his ministry attempts to defy him exists as well. I’m referring of course to the King-Byng Affair.
The timing of the Prime Minister’s declaration is important as well. It’s almost certain that the writ will be dropped in a matter of weeks (possibly as early as the middle of August), and the PM’s powers to advise the GG will at that point become sharply limited. Harper’s grandstanding stunt is carefully measured to have the maximum political impact, with, at least until after the next election, little in the way actual effect.
I’m not feeling all that gloomy yet. This is a declaration meant to take the sting out of further fallout from the Duffy trial and steal some of the NDP’s thunder. We are also fortunate that the current Governor General is no stranger to the law and constitutional issues.
I know nothing about law, so I’m wondering: how can a section of our constitution (32) be, for all practical purposes, unenforceable (if we listen to the government lawyers’ arguments)? That seems crazy to me.
That’s possible though. Not every constitutional provision is judicially enforceable. And of course, ultimately, the courts cannot force the government to comply with their decisions. We depend them doing the right thing. Unfortunately, it is not clear our reliance on Mr. Harper in this regard is justified. (Although I should note that many people have suggested that Mr. Harper actually wants the courts to order him to appoint Senators, so as to do it while disclaiming responsibility.)
I’m not sure I’d call the aspects of the Constitution unenforceable, it is just that the enforcer in this case is a figure whose role is usually restricted by long convention and practice to following the Government’s advice, and any Governor General would feel very uncomfortable contemplating invoking the powers necessary to right a situation like refusal of a PM to give him appointments to the Senate. But really, the Governor General’s role is to assure good governance, and it certainly is no great stretch for a GG to consider an obstinate government refusing to cooperate with him to fulfill one of his roles as a direct attack on that notion.
When I look back at the last ten to twelve years, I think a showdown like this has become more and more likely. From the moment the Tories, NDP and the Bloc shot off a letter to then Governor General Adrienne Clarkson declaring they were ready and willing to topple the Liberal government I think we’ve seen a trend towards the main political actors skirting ever closer to the edge of political and constitutional crisis. In a strange way, more so than at any point in Canadian history, we seem to be forcing the crown on the Governor General’s head. We dare the office too many times, and we will end up like Australia in 1975, with everyone looking at the constitutional crater left behind by a GG’s forced direct intervention and asking ourselves “How did that happen?”
To put it bluntly, I think, more so now that at any point in our history, our politicians have become reckless and heedless of their most basic responsibilities.