Immuring Dicey’s Ghost

The Senate Reform Reference and constitutional conventions

In its opinion in Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704, the Supreme Court notoriously relied on a metaphor that had previously popped up, but played no real role, in its jurisprudence: “constitutional architecture”. Notably, the court was of the view that moves towards an effectively elected Senate would modify the constitution’s architecture, and such modifications required formal amendment under Part V of the Constitution Act, 1982, just as much as changes to the explicit provisions of the constitution’s text. Yet the court’s explanations of just what this architecture was were short and cryptic, and haven’t been elaborated upon ― judicially ― in the intervening years.

To fill in this void, an academic cottage industry sprang up to speculate about the meaning of the architectural metaphor and about what other constitutional reforms it might block. For example, Kate Glover Berger suggested that “action taken to dismantle or undermine the administrative state could be deemed unconstitutional” because the administrative state is built into the architecture of the Canadian constitution. Lorne Neudorf invoked architecture in the service of an argument to the effect that courts can read down or indeed invalidate vague delegations of legislative power to the executive branch. Michael Pal speculated that the first-past-the-post electoral system might be entrenched as part of the constitutional architecture.

All this while, I have been working on my own contribution to this genre, called “Immuring Dicey’s Ghost: The Senate Reform Reference and Constitutional Conventions”, which is finally going to be published by the Ottawa Law Review later this year. In a nutshell, I argue that “architecture” is really just code for “conventions” ― those supposedly non-legal but fundamentally important constitutional rules, arising out of political practice and morality, which courts have long said they could not possibly enforce. And I argue, further, that the Supreme Court should have squarely addressed the fact that it was relying on conventions, instead of playing confusing rhetorical games.

A draft is now available, for your reading pleasure. Here is the abstract:

Although the metaphor of “constitutional architecture” had appeared in some previous opinions of the Supreme Court of Canada, it took on a new importance in Reference re Senate Reform, where the Court held that amendments to constitutional architecture had to comply with the requirements of Part V of the Constitution Act, 1982. However, the Court provided very little guidance as to the scope of this entrenched “architecture”. As a result, the metaphor’s meaning and implications have been the subject of considerable scholarly debate.

This article contributes to this debate by arguing that “constitutional architecture” incorporates (some) constitutional conventions. It further takes the position that, instead of relying on this confusing metaphor, the Court should have candidly admitted that conventions were central to its decision by acknowledging that the text of the Canadian constitution cannot be fully understood without reference to conventions.

Part I reviews, first, the Supreme Court’s opinions in which the notion of constitutional “architecture” has been mentioned, focusing on this concept’s place in the Senate Reform Reference, and then some of the scholarly commentary that has endeavoured to make sense of it. Part II sets out my own view that constitutional “architecture”, as this concept is used by the Supreme Court, is concerned primarily if not exclusively with constitutional conventions. Part III considers whether it is possible to determine precisely which conventions are encompassed by the notion of constitutional architecture, examining the conventions’ importance, and their relationship to the constitutional text as possible criteria, and concluding that neither allows precise determinations. Part IV sets out what would in my view have been a less confusing way of addressing the significance of conventions to the questions the Court was facing in the Senate Reform Reference: frankly recognizing that conventions were relevant to the interpretation of the applicable constitutional texts. Part V examines two objections to the incorporation of conventions (via “architecture” or through interpretation) into the realm of constitutional law, arguing that this incorporation is not illegitimate, and that it will not stultify the constitution’s development. Part VI concludes with an appeal for greater transparency on the part of the Supreme Court.

The last thing I mention here is that this paper begins the project of bringing together two subjects on which I had mostly been writing separately: constitutional conventions on the one hand, and originalism on the other. As explained here, Canadian originalism has to grapple with the fact that some of our most important constitutional rules are unwritten. This paper, although it doesn’t make a case for originalism, begins to outline what that an originalist approach to conventions will look like.

A Bad Case

As promised, here are some thoughts on the Memorandum of Fact and Law that the federal government’s lawyers have filed in response to Aniz Alani’s challenge of the Prime Minister’s policy of not appointing Senators. (I had previously canvassed what I thought ― mostly, but not entirely, correctly ― would be the main issues in this case here, and commented on the Federal Court’s decision rejecting the government’s motion to strike here.) Full disclosure, before going any further: I have spoken to Mr. Alani about this case, and made some comments on the draft of his own Memorandum of Fact and Law. Whether this makes me biased, you be the judge.

The government makes four arguments for dismissing Mr. Alani’s challenge. First, it says that he does not deserve to be granted public interest standing to pursue it. Second, the claim is, in its view, non-justiciable, because it requires the court to enforce a constitutional convention. Third, even if justiciable, the issue is not within the jurisdiction of the federal court. And fourth, when it comes to the actual merits, the Prime Minister has “broad discretion” as to the timing as well as the contents of his advice.

Note what’s missing here: an actual claim that s. 32 of the Constitution Act, 1867 doesn’t require the appointment of Senators. It’s blindingly clear that it does, and much of the government’s argument is devoted to directing the Court’s attention away from this simple truth. That said, all truths are not to be told by courts generally, and by the Federal Court of Canada specifically, and the government’s arguments on justiciability and, perhaps especially, jurisdiction are serious, albeit presented in a rather misleading way.

The standing argument is more difficult to take seriously. The test for granting a person public interest standing (i.e. the ability to pursue a claim that has no impact on his or her own legal rights) is explained in the Supreme Court’s decision in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524. There must be a serious justiciable issue ― a point that is treated separately in the government’s submissions (and presumably always will be if it is a live issue in a case, which makes me wonder whether it even should be treated as part of the standing inquiry). The claim must be a reasonable and effective means of getting the issue before the courts. This is normally the most contentious part of the test, but here, the government’s submissions have little to do with the usual inquiry into the existence of alternative ways of getting the issue litigated. They focus, rather, on the other element of the standing test, which asks whether the claimant has a genuine interest in the issue. The government makes much of the the fact that Mr. Alani hadn’t taken an interest in the question of Senate vacancies for any length of time before launching his application. In its submission, this makes him “a ‘busybody’ as the term is defined in the jurisprudence,” [39] a person who doesn’t really care about the issue, and thus undeserving of representing the public interest.

This argument is really beside the point, however. The policy of not appointing Senators is new and unprecedented. Nobody can have demonstrated a long-standing interest in it, because it did not exist, or at least hadn’t been publicly announced, until last winter. Mr. Alani became interested in it as soon as it was possible for anyone to do so. The government’s argument amounts to a suggestion that nobody can bring a public interest court challenge to an unconstitutional government policy for some undefined time after it is put in place, because doing so makes the claimant a “busybody.” This is absurd. As for Mr. Alani himself, right or wrong, he has made a difficult argument very seriously; he has invested a considerable amount of time and effort into it; he doesn’t just come to court with a vague sense of grievance; he has also, I have argued, taken his role as a (self-appointed) representative of the public with more seriousness than most public-interest litigants, or for that matter the government itself, tend to do. In the absence of any other, more effective, vehicle for getting the issue adjudicated, his challenge deserved to be addressed substantively, and not dismissed for lack of standing.

The government’s argument on justiciability is that Mr. Alani “seeks … judicial enforcement of the Prime Minister’s role in Senate appointments.” [45] Courts, according to orthodox constitutional theory, are not in the business of enforcing constitutional conventions, and thus they should not adjudicate Mr. Alani’s claim. Nor is the Supreme Court’s recognition in Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704, of the existence of a “constitutional architecture” enough to make conventions justiciable.

As I have indicated above, I think that the justiciability issue is a serious one, but not exactly for the reasons the government suggests. Indeed, I think that it is somewhat misleading to describe Mr. Alani’s claim as seeking the enforcement of a convention. Convention says that the Governor General appoints Senators on the Prime Minister’s advice, and not on his own initiative. It eliminates the discretion that the text of the Constitution Act, 1867 seems to give to the Governor General. If the Governor General decides to appoint Senators on his own, without waiting for the Prime Minister’s advice, and the Prime Minister tries to block those appointments, that would indeed be an attempt to enforce a convention. What Mr. Alani is asking for is something else. He wants the Prime Minister to be told that he must advise the Governor General ― not the Governor General to be told that he must follow the Prime Minister’s advice. The duty Mr. Alani is asking the court to enforce is not the Governor General’s, but the Prime Minister’s.

This is, admittedly, a novel claim, and it raises two issues: does the duty in question exist at all, and if so, what is its nature? Contrary to the government’s submissions, I think that the notion of constitutional architecture is pertinent here. The architecture of our system of responsible government involves an advice-giving Prime Minister (in some situations, including Senate appointments) and cabinet (in others). When the relevant actors are refusing to give advice to the Governor General, they are undermining this architecture. This is particularly so when the advice in question is necessary for the Governor General to legitimately perform a clear constitutional duty, such as the appointment of Senators. For this reason, I think that it is quite clear that the Prime Minister does indeed have a duty to advise the Governor General to make Senate appointments. And, while this is less clear, I think that taking the notion of constitutional architecture seriously requires us to conclude that this duty is indeed a legal one.

The federal government’s strongest argument, in my view, is the one about the jurisdiction of the Federal Court, which is only empowered to review decisions of bodies acting pursuant to an Act of Parliament or a Crown prerogative. The government contends that the Prime Minister, in his advice-giving capacity, is not such a body. The heart of Mr. Alani’s argument on this point is his submission that

[i]In the case of Senate appointments, the Governor General enjoys the Crown prerogative power to summon and receive advice from the Prime Minister. The Prime Minister, in turn, has jurisdiction to advise “by a prerogative of the Crown.”

The government’s response is that “[t]he advice is simply provided pursuant to a constitutional convention” [75] ― otherwise, it says, the advice would be binding on the Governor General.

I think this is a difficult question. On the one hand, it’s not obvious to me that if the Governor General has the prerogative to summon advisers and receive and advice (as he does), the advice he receives is given “by” that prerogative. On the other, I think the government is wrong to claim that the non-binding nature of the advice shows that it is strictly conventional in nature. Convention that makes the advice binding, but it does not follow from that that the advice itself is given pursuant to a conventional, rather than a legal obligation. Indeed, as I suggest above, I believe that the Prime Minister does have a legal obligation to provide advice on Senate Appointments ― but again, I’m not sure that this is enough to make this advice into one given “by a prerogative of the Crown,” rather than a duty directly imposed by the constitution, over which, as the government argues, the Federal Court would lack jurisdiction (so that Mr. Alani would have to bring a new case in a provincial superior court if he wants the matter adjudicated).

Finally, on the substantive issue in Mr. Alani’s challenge, the government argues that the remedy he seeks, namely a declaration that Senate vacancies must be filled “within a reasonable time” is too vague to be granted, and that there is no constitutional convention limiting the time a Prime Minister can take to recommend an appointment. The matter is one in which the Governor General (and, presumably, the Prime Minister) has a “wide discretion.” [89]

One thing that comes to mind in response is Justice Rand’s famous statement in Roncarelli v. Duplessis, [1959] SCR 121, that “In public regulation of this sort there is no such thing as absolute and untrammelled ‘discretion’, that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator.” (140) The context is not quite the same ― we’re not talking about economic regulation or even administrative law, but the warning is apposite. The Governor General does, undoubtedly, have some discretion, perhaps wide discretion, in complying with s. 32 of the Constitution Act, 1867, because a Senate appointment is, or should be, a serious political decision which may reasonably take some time. But this discretion cannot be abused in every which way a Prime Minister thinks expedient.

And, once again, the government’s emphasis on (non-existent) conventions is rather beside the point. The issue here is not that some one vacancy has gone unfilled for too long. It is that the Prime Minister has announced a policy of not filling them at all. If the existence of a constitutional convention cannot overturn clear constitutional text, then surely the non-existence of a convention cannot do so either. Yet that is exactly the government’s contention: no convention specifies how quickly s. 32 must be complied with, therefore s. 32 need not be complied with at all. This too is absurd.

When a court finally reaches the merits of Mr. Alani’s claim, it ought to rule in his favour. The government’s substantive submissions are feeble ― not because its lawyers are bad, but because its case is. But whether the Federal Court is the court that can address the merits of this case is a difficult question, to which I am unable to suggest a definitive answer.

Don’t Blame the Courts

Critics of judicial review of legislation, such as Jeremy Waldron, argue that judicial invalidation of democratically enacted laws often occurs in the realm of reasonable disagreement. Perhaps we have a moral right to assisted suicide; perhaps not; it’s a difficult question and we can disagree about the answer ― and it’s not obvious that in the event of disagreement, a court’s view ought to prevail over that of the legislature. Defenders of judicial review like to point to the numerous occasions on which the “political branches” of government ― that is, the legislature and the executive ― act in ways that cannot sensibly be supposed to be constitutional, and indeed with very little thought to the constitutional issues that their actions may raise.

Some critics (though not, I believe, prof. Waldron) respond by suggesting, more or less explicitly, that the politicians would act more responsibly ― that is to say, they would take the constitution more seriously ― if they did not know that their decisions would be subject to revision by courts. It’s not an inherently implausible view, and indeed I have been attracted to it on occasion. But recent events surrounding the Senate have provided something of a natural experiment that sadly suggests that this view is mistaken.

The courts normally have no say over whether a person is eligible to be appointed to the Senate (except, that is, unless the question is asked by way of reference to the Supreme Court, which is how the “Persons case” started). The question is, in the first instance, for the Prime Minister to answer prior to an appointment, and eventually, pursuant to s. 33 of the Constitution Act 1867, for the Senate itself to settle. As for the question of whether any Senate appointments have to be made at all, it may yet be answered by the courts, but the government itself is adamant that it is not justiciable, and thus falls to the Prime Minister to determine. The way these questions have been handled of late, and may well continue to be handled in the future, discloses no concern with the constitution.

We now know that the Prime Minister brushed aside legal advice regarding the meaning of constitutional residency qualifications for appointment to the Senate. His own view that the residency qualification of par. 23(5) of the Constitution Act, 1867 was, in effect, subsumed into the property qualification of par. 23(3) prevailed ― without any explanation ― over his own lawyer’s cogent observation that the existence of two separate provisions meant that the two requirements were distinct. Moreover, as Adam Dodek points out, the Attorney General, part of whose job description is to advise the other government members of legal and constitutional matters, and who can rely on a staff of dedicated (and often very bright) lawyers to help him give this advice, was not consulted at all when the Prime Minister was engaged in this exercise of constitutional interpretation. And the Senate itself, ultimate arbiter of its members’ qualifications, never got around to addressing this question ― seemingly because the good people in the Prime Minister’s office decided that it was unnecessary and inexpedient.

All that, of course, was back when the Prime Minister was still fulling his constitutional responsibility to have Senators appointed at all. He no longer is. Whether he has come up with some specious constitutional interpretation that purports to justify this policy, we do not know, since he has not told us. His publicly offered justifications ― it saves money for the treasury! ― have nothing to do with the constitution. The policy of the Leader of the Opposition is the same, and his justification too ― he claims that denying provinces their representation in the Senate will make them agree to his plan to abolish the Senate altogether ― has nothing to do with constitutional interpretation.

All that to say that, left to their own devices, politicians take the constitution no more seriously than when they act under adult judicial supervision. Actually, they do not care about it at all. To be sure, the courts are sometimes no better. But such cases are, on the whole, aberrations. In politics, blithely ignoring constitutional commands seems to be a perfectly normal thing. Don’t blame the courts for this.

Making Sense of Constitutional Crises

Not surprisingly, my suggestion that the Governor General dismiss Stephen Harper as Prime Minister for his (Mr. Harper’s, that is) unconstitutional policy of not appointing Senators turned out to not to be any more popular than my earlier suggestion that the Governor General just appoint Senators on his own, without the Prime Minister’s blessing. That idea was met with admonitions about the importance of the conventions of responsible government, said to be such that it is better for the Governor General to dismiss a Prime Minister who fails to give constitutional advice than to act on his or her own. But no one really wants the Governor General to dismiss the Prime Minister, for doing so would trigger, it is said, a constitutional crisis. It is not, Andrew Coyne said, a sensible thing to do.

Triggering constitutional crises is, indeed, a dubious idea. The trouble ― and really the key point of my last post ― is that we already are in a constitutional crisis, courtesy of Mr. Harper. The crisis, to be clear, does not lie in the Senate’s reduced numbers and diminished capacity (though that will become a crisis in itself eventually). The crisis, rather, consists in the fact that the effective head of the executive branch of government is refusing to comply with a clear and, so far, undisputed constitutional obligation. Perhaps it is nevertheless true that we should not try to solve this crisis by creating another one. But to say that is not to answer the question of how we should solve the problem of a lawless, constitution-flouting head of government.

I should stress that, in my view, Mr. Harper’s position on Senate appointments is a unique and unprecedented act of defiance. It is often said that his government has a history of engaging in actions or introducing legislation that they know is unconstitutional. Yet it had, until now, always proffered at least some arguments, albeit often weak ones, in defence of its legislation. While it has occasionally dithered about complying with its constitutional obligations (such as appointing a judge to replace Justice Nadon on the Supreme Court, or responding to the Supreme Court’s decision on assisted suicide), it ultimately did comply. Here, Mr. Harper has made no attempt to articulate a constitutional argument in defence of his position, and his commitment is too firm for him to back down on his own.

Emmett Macfarlane and Michael Plaxton both suggested that we should wait for courts to rule. But again, it is not clear that they will or ought to rule in favour of Aniz Alani, who is challenging Mr. Harper’s policy of not appointing Senators ― not because there is any doubt about that policy’s constitutionality, but because there is doubt about the courts’ power to remedy it. (Prof. Macfarlane has an interesting suggestion in that regard, arguing that non-appointment amounts to a constitutional amendment in violation of Part V of the Constitution Act, 1982. I think that would be a compelling argument at some point, but it is at least arguable that we are still far from having reached that situation.)

And just as importantly, I think it is worth at least asking whether we are right to think that judicial remedies are always better than political ones. They seem less shocking, less prone to generate crises. But what makes them so? The fact that judges are outside politics, perhaps. But then, so is the Governor General. And not everyone will agree that judges really are outside politics at all. (This also brings to mind an exchange I had with Mr. Coyne when he graciously accepted to publish an op-ed of mine arguing that the Supreme Court was wrong to constitutionalize some rights of organized labour in a series of decisions this winter. I suggested that we should, as a last resort, pursue a constitutional amendment to reverse these decisions. Mr. Coyne was skeptical of the amendment idea ― but not of my suggestion that governments should try to get the Court to reverse itself. But why should that judicial remedy be less problematic than the political remedy afforded by the amendment procedure?)

Those who disagree with me probably believe that the dismissal of the Prime Minister, even an avowedly lawless Prime Minister, by the Governor General would cause more harm than good to our institutions. They might be right. But I wonder if they are letting the short-term, shit-hits-the-fan consequences of this, admittedly radical, action blind them to the less visible, but insidious consequences that nothing being done will have for the Rule of Law, and especially for the respect for the constitution. Many of our constitutional rules only exist so long as political actors abide by them and, ultimately, all public law is dependent on the government’s commitment, which cannot be coerced, to comply with binding legal rules. This commitment is fraying, and I can only hope that this process will somehow be stopped before it is too late.

Dismiss Him

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.

Let’s Hear It

I’ve mentioned Aniz Alani’s challenge to the constitutionality of the Prime Minister’s apparent and admitted policy of not making any Senate appointments before. The federal government moved to strike Mr. Alani’s application for judicial review, arguing that it had no chance of success, and also that the Federal Court had no jurisdiction to hear it. Yesterday, that Court’s Justice Harrington rejected the motion to strike, thus allowing the application to proceed to a hearing on the merits. It is important to keep in mind that this is not a decision on the substance of any of the multiple issues Mr. Alani’s application raises. Indeed, Justice Harrington is very careful to make it clear, throughout his reasons, that these issues are very much open. Still, these reasons might give us some indications of what the eventual merits ruling could look like.

The issues presented by this case can be sorted in four categories. Logically the first is the question of whether the constitutionality of senatorial non-appointments is justiciable at all. Then there is the procedural question of whether Mr. Alani’s application to the Federal Court is the right way to raise it. Justice Harrington mostly considers a variety of sub-questions that can be grouped under these two headings, dealing with procedure first and with justiciability second.

What I have in the preceding paragraph called the procedural question is actually mostly one of jurisdiction. Justice Harrington briefly considers the matter of Mr. Alani’s standing, but does not really go beyond “grant[ing] him standing on a public interest basis to oppose the motion to have his application struck.” [11] He also comments on the question of whether there is a “decision” not to appoint Senators which the Federal Court could review. If there is no decision, Justice Harrington suggests when considering some amendments Mr. Alani proposed making to his application, then the application becomes a pure “reference” on a point of law, which the Federal Courts Act does not authorize an individual to pursue. The Federal Court would, in other words, be without jurisdiction to entertain a challenge not focused on a “decision.” For the purposes of a motion to strike, Justice Harrington is prepared to assume that a “decision” has been made, but he seems somewhat skeptical. This is likely to be a problem for Mr. Alani going forward, as I had already suggested here.

The other jurisdictional question Justice Harrington addresses is also one I had pointed at. Even assuming that the Prime Minister has made a “decision,” within the meaning of the Federal Court Act, not to advise the Governor General to appoint Senators, does this decision fall within the scope of the Federal Court’s review powers? More precisely, the government contended that decisions regarding advice do not fall within the scope of Crown prerogative, and are thus nonrenewable. Justice Harrington does not decide this point, but rather says that there is enough doubt about it to leave it open to a hearing on the merits. (It is worth noting, though, that he does not once mention the concept of “constitutional architecture,” which in my view is Mr. Alani’s best hope of bringing the issue of the Prime Minister’s advice within the legal, as opposed to the purely conventional, realm.)

As for the justiciability issues involved in Mr. Alani’s challenge, they all have to do with the role of constitutional conventions in the appointment of Senators. All agree that there is a convention pursuant to which Senators are appointed by the Governor General on the Prime Minister’s advice. The government has argued that, as conventions are not legal rules or legally enforceable, the whole matter non-justiciable. Justice Harrington suggests that this is not so. He notes that the government has not argued that a convention governs “the timing of the Prime Minister’s recommendations” to the Governor General, and adds that

[c]ertainly, at some stage, senators have to be appointed. If there were to be no quorum, (the quorum being fifteen), Parliament could not function as it is composed of both the House of Commons and the Senate. [17]

Justice Harrington goes on to say that courts can determine whether a convention exists, and that if the government wants to rely on one, it will not only have to establish its existence, but possibly also show that any convention it relies on does not “flaunt[]” the requirements of the Constitution Act, 1867, “that Senate vacancies be filled” “promptly” [18] ― though the existence of such a requirement is also left to be established (presumably by Mr. Alani) at the merits stage of the application. Finally, Justice Harrington suggests that, contrary to the government’s contention, the court could make a declaration even if doing so has the effect of making the government follow a convention.

It is good, I think, that Mr. Alani’s challenge will be considered on the merits. It underlying premise, that the timely appointment of Senators to fill vacancies is a constitutional requirement pursuant to s. 32 of the Constitution Act, 1867, seems to me obviously correct, and since the Prime Minister, as well as one of the men hoping to replace him, are committed (the latter perhaps even more strongly than the former) to disregarding the constitution, it would be good if the courts could call them to order. That said, it is still not clear that the Federal Court is actually authorized to do that. Specifically, it remains to be seen whether the Prime Minster’s course of action can be regarded as a reviewable decision and, if so, whether it is the sort of decision the Federal Court has jurisdiction to review. Courts, unlike Prime Ministers, cannot simply ignore pesky legal rules that might stop them from doing what they think is best.

Please Advise

The Prime Minister is apparently refusing to have any new Senators appointed, until, well, who knows (though one may suspect that it is until the next election. The leader of the official opposition has already declared that he would never appoint any Senators ever. And, as I noted in my first post on this subject, a Vancouver lawyer, Aniz Alani, has asked the Federal Court of Canada to put an end to the Prime Minister’s subversion 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.” Mr. Alani’s suit raises a number of interesting questions. In this post, I address some of them.

Although his notice of application names both the Prime Minister and the Governor General as respondents, Mr. Alani’s challenge is framed as an application for judicial review of the Prime Minister’s “decision … not to advise the Governor General to summon fit and qualified persons to … the Senate.” He seeks declarations to the effect that the Prime Minister must so advise the Governor General, and that his failure to do so is an unconstitutional violation both of the relevant provisions of the Constitution Act, 1867 and of underlying constitutional principles.

Before getting to the substantive issues this raises, a few words about preliminary matters. An issue that I will only flag, but not address, is that it can be difficult to show that a course of not doing something amounts to a decision not to do it that is amenable to judicial review. Assuming that Mr. Alani can clear that hurdle, he may also need to convince the court to grant him public interest standing, to pursue his challenge, since the non-appointment of Senators does not injure or affect him personally any more than any other citizen. The factors a court will consider in deciding whether to grant public interest standing are the existence of a serious justiciable issue, on which more below, though if the federal courts follow the Québec Court of Appeal’s recent decision in Canada (Procureur général) c. Barreau du Québec, 2014 QCCA 2234, they will not impose a high threshold here at the standing stage; the seriousness of the applicant’s interest; and the existence of alternative ways of getting the matter before the courts, which should not be an issue here.

Once these matters are out of the way, the biggest substantive issue with Mr. Alani’s application is the way in which it involves constitutional conventions. This arguably goes at once to the jurisdiction of the Federal Court under section 18.1 and to the justiciability of his claims under the general principles courts apply in cases where their power to decide a question is uncertain. To repeat, Mr. Alani’s application aims squarely at the behaviour of the Prime Minister, and not that of the Governor General. Yet the text of the Constitution Act, 1867 gives the power and the duty ― the word “shall” in section 32 is dispositive in this regard ― to appoint Senators to the Governor General. Pursuant to a constitutional convention, this power is exercised on the Prime Minister’s advice. But, on the orthodox view, that convention itself is not a legal rule, and there is no legal link between the Prime Minister and the appointment of Senators.

Thus, Mr. Alani may have some difficulty showing that his application raises at least one of the “grounds of review” which give the Federal Court jurisdiction under subsection 18.1(4) of the Federal Courts Act. At least on the orthodox view of a rigid separation between law and convention, the Prime Minister has not “refused to exercise [his] jurisdiction,” “failed to observe a … procedure that it was required by law to observe,” or “acted in any other way that was contrary to law.” The law, on this view has nothing to say about the Prime Minister’s behaviour with respect to the appointment of Senators. For the same reason, the government could argue that the a Prime Minister’s decision to advise or not to advise the Governor General is a purely political one, and therefore lacks a “sufficient legal component” to be justiciable.

The Supreme Court’s opinion in Reference re Senate Reform, 2014 SCC 32, complicates things, however. The Court introduced a notion of “constitutional architecture,” which seems to encompass the relationships between the various institutions of government, such as that between the Senate and the House of Commons. The Court took the position that making the Senate, in effect, elected would alter the constitutional architecture by making it the equal of, rather than the complement to, the House of Commons. Until then, we thought that the reason the Senate (normally) yielded to the House of Commons was a constitutional convention, rather than a legal constitutional norm.

Mr. Alani could invoke this notion of constitutional architecture, which is part of the legal and not only the conventional constitution, to argue that the Prime Minister’s actions ― or rather his inaction ― infringes on the “constitutional architecture” which makes him responsible for ensuring, by giving timely advice as to the identity of “fit and qualified persons,” that the Governor General can discharge his duty under s. 32 of summoning them to the Senate “when a vacancy arises.” Whether the courts would accept this argument remains to be seen. It seems at least plausible to me, but the notion of architecture is too new and too uncertain to make any predictions about the ways in which it might be applied in the future.

But even if Mr. Alani can overcome the difficulty of showing that the Prime Minister’s behaviour actually contravenes a legal rule, he will further need to convince the courts that the remedies he is seeking are appropriate. (Although I cannot develop the argument for this proposition here, I think that the courts’ decisions on justiciability are often dependent on their views of their remedial powers, and not only on the nature of the rules at issue in a case.) Mr. Alani is asking the court to declare that “the Prime Minister … must advise the Governor General to summon a qualified Person to the Senate within a reasonable time after a Vacancy” arises, and that he is acting unconstitutionally by failing to do so. But such a declaration would not be very helpful, because it would not specify what a reasonable time is. Unfortunately, it is probably impossible for a court to be any more specific, given the politically sensitive nature of any Senate appointment, not to mention the absence of any clear time limit in the constitutional text.

Now the Supreme Court has occasionally issued fairly vague declarations or statements of the law, often in the context of references (such as the Reference re Secession of Quebec, [1998] 2 S.C.R. 217). The one “normal” case where the Court did that, which immediately comes to mind, however, is Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, where the Court declared that the Canadian government had acted unconstitutionally, and said, in effect, that it ought to do something about that. But the government’s ― this Prime Minister’s government’s ― response to that decision was arguably perfunctory, and the same might happen in this case. A declaration that the Prime Minister is acting unconstitutionally may well be met with further inaction, and might thus only serve to undermine the courts’ authority. I am not sure that the courts will, or indeed that they should, risk such an outcome.

The constitutional rule set out in section 32 of the Constitution Act, 1867, seems clear enough. But the role of constitutional conventions and concerns about the remedial powers of the courts, not to mention administrative law and standing issues, might still prevent it from being judicially enforceable. This seems problematic from the perspective of the Rule of Law ― but then again, a rule of this sort never intended to be judicially enforced. A Prime Minister’s self-interest in making patronage appointments can normally be counted on to ensure that appointments to the Senate will be relatively expeditious. Unfortunately, when the incentives on which a constitutional scheme implicitly relies break down, the constitution itself becomes dysfunctional ― indeed, we may well speak of a constitutional crisis, albeit not yet an acute one ― and it’s not obvious what can be done about that, or by whom.