The constitutional challenge to Harper's moratorium on Senate appointments still raises important issues that our new government should seek to address.

Since the October 19th federal election, there’s been a lot of speculation about what would happen with the federal government’s portfolio of outstanding litigation inherited from the previous administration. In a mandate letter to the newly minted Minister of Justice and Attorney General, Prime Minister Justin Trudeau instructed Ms. Wilson-Raybould to “review [Canada’s] litigation strategy”, including “early decisions to end appeals or positions that are not consistent with our commitments, the Charter or our values.” To date, the changing of the guard has led to, among other things, the federal government abandoning its bid to challenge a Federal Court of Appeal ruling permitting Zunera Ishaq to wear a niqab while swearing her oath of citizenship, as well as an appeal of a Federal Court ruling overturning the previous government’s cuts to health care coverage for certain groups of refugees and refugee claimants.

However, still pending before the Courts, and without any indication the current government’s position is any different from its predecessor’s, is a constitutional challenge concerning the failure to fill vacancies in the Senate. This litigation arose in response to former Prime Minister Stephen Harper’s public statement in December 2014 indicating that he was in no rush to recommend appointments because he wasn’t “getting a lot of calls from Canadians to appoint more Senators”.

In this post, I’ll outline the key issues raised in the case and argue why the challenge continues to raise important policy and legal issues even after a change in government. I’ll also lay out what the current government could plausibly do to address the policy issues raised without further litigation.

Full disclosure: I’m the applicant in the court challenge just described. As such, I have a personal stake in the outcome of the litigation. I also have a financial interest in its outcome: if I’m not successful in the case, the Government of Canada has asked for an order that its costs of defending the lawsuit be recovered from me personally. As a lawyer, I aim to acknowledge the strengths and weaknesses of all positions taken in the litigation. But am I biased? Undoubtedly.

How the Case Came to Be

When Mr. Harper suggested on December 4, 2014 that he wasn’t planning to appoint any more Senators, there were already 16 vacancies in the Senate. (There are now 22.) He hadn’t recommended any appointments since March 25, 2013 – and that was the appointment of Scott Tannas, who had been “nominated” by his fellow Albertans through a consultative election held in 2012. The Senate hadn’t its full complement of 105 Senators since September 2012.

Earlier the same day, the newly appointed Speaker of the Senate, Pierre-Claude Nolin (who later succumbed to a rare form of cancer in April 2015) commented publicly that the number of vacancies was affecting the proper functioning of the Senate. In contrast, Mr. Harper was reported to have said, “…for our government the real goal is to ensure the passage of our legislation by the Senate and thus far, the Senate has been perfectly capable of fulfilling that duty.”

The Supreme Court of Canada, earlier that year, released its unanimous opinion in the Senate Reform Reference, in which it concluded that any substantial reform of the Senate – including the federal government’s proposed system of consultative elections and term limits – required approval of seven provinces having an aggregate of at least half the national population (the “general amending formula”). Abolition of the Senate, which the Court noted would “fundamentally alter our constitutional architecture”, requires the unanimous consent of Parliament and the provinces. (The Attorney General of Canada had argued, unsuccessfully, that term limits and consultative elections could be implemented by Parliament acting unilaterally, and that the general amending formula applied to Senate abolition.)

Faced with a Supreme Court ruling that “personally disappointed” Mr. Harper, and against the backdrop of scandals engulfing numerous Senators including over expense claims, it appeared to many that the Prime Minister had simply thrown in the towel on the Upper Chamber. (Later, on July 24, 2015, Mr. Harper went even further, declaring a formal “moratorium” on Senate appointments.)

The Logic of the Constitution

Pending before the Federal Court is an application for judicial review seeking a declaration that the Prime Minister of Canada must advise the Governor General to fill Senate vacancies within a reasonable time after they occur. The claim is premised on the following:

  • The Constitution of Canada requires that the Senate “shall” be composed of 105 Senators, each being resident and appointed from a province or territory to provide for regional representation according to a specified formula.
  • The constitutional text also requires that the Governor General “shall” summon Senators “when a Vacancy happens in the Senate by resignation, death or otherwise”.
  • Under Canada’s system of responsible government, the Governor General only appoints Senators on the advice of the Prime Minister.

If the Governor General “shall” fill Senate vacancies “when” they happen, and the Governor General is prevented from appointing Senators except on the advice of the Prime Minister, the question remains: is the Prime Minister obliged to advise the Governor General to fill Senate vacancies? If so, is the obligation one recognized by law?

Canadian courts have the power to judicially review government actions (or inaction) and decisions to ensure they comply with the rule of law. Generally speaking, this means that although courts won’t lightly second-guess decisions made by the executive government, judges are charged with scrutinizing both the process leading up to executive decisions and the merits of the decisions themselves to ensure they fall within a range of reasonable outcomes permitted by law, are free from undue bias, and were reached in a procedurally fair manner. For most executive action and decision-making at the federal level, judicial review takes place exclusively in the Federal Court and the Federal Court of Appeal.

Why the Case Still Matters

With Stephen Harper no longer Prime Minister, and his unilaterally imposed moratorium on Senate appointments presumably no longer in effect, is the Senate vacancies litigation still relevant? I suggest it still warrants a decision from the Court for three reasons discussed in turn below.

First, the question of whether a Prime Minister has an obligation to recommend appointments to fill Senate vacancies remains unanswered and is hardly free from doubt. It remains the position of the Conservative Party of Canada – the current Opposition party and, until recently, the governing party – that it will “do nothing to further entrench an unelected, unaccountable Senate”. The New Democratic Party of Canada led by Tom Mulcair – until recently, the official Opposition – similarly prefers to let the Senate “wither on the vine” by refusing to name any additional Senators.

Even assuming Prime Minister Justin Trudeau intends to return the Senate to its constitutionally entrenched composition and to thereafter promptly fill newly arising vacancies while he remains in office, he won’t be Prime Minister forever. The Court’s reasons for judgment on the underlying constitutional question, issued with the benefit of thorough legal argument and an evidentiary record already filed in Court, could provide enduring guidance and eliminate any doubt about whether “abolition by stealth” is a legally viable strategy available to any government.

Second, the fact remains that 22 vacancies remain unfilled. Prime Minister Trudeau’s government has articulated its plan for filling these vacancies throughout 2016 based on recommendations from an independent, non-partisan advisory panel. This novel process for selecting Senators will, understandably, take some time to implement. But its novelty breeds uncertainty, and regional representation in the Senate remains undermined in the meantime. If the advisory panels run into unanticipated delays, it will presumably be politically awkward for Prime Minister Trudeau to fill vacancies without having followed the novel process he campaigned on. With the two main opposition parties in the House of Commons themselves dead set against further Senate appointments, it’s unlikely Prime Minister Trudeau will be taking any heat in Question Period for any resulting delay.

Third, the federal government has defended the case by taking various legal positions which, if not expressly rejected by the Courts, could seriously undermine Canadians’ ability to hold government accountable for suspected breaches of the rule of law – both in the context of unfilled Senate vacancies specifically and generally. Discussed in further detail below, the government objects to the Senate vacancies court challenge on grounds including that the Courts have no ability to make determinations concerning a Prime Minister’s role in the appointment of Senators because it involves a matter of a “non-justiciable” constitutional convention (i.e., that the Governor General only acts on the advice of the Prime Minister in appointing Senators).

In its court materials, lawyers for the federal government also argue that the court challenge can’t be brought by an applicant lacking a direct interest in unfilled Senate vacancies:

“Mr. Alani has not identified any tangible impact or prejudice that he has experienced as a result of unfilled vacancies in the Senate, either in his notice of application, his supporting affidavit or his memorandum of fact and law. Furthermore, in cross-examination on his affidavit, Mr. Alani confirmed the following:

a) Mr. Alani is not interested in becoming a Senator;
b) Mr. Alani has no expectation of being made a Senator;
c) Mr. Alani has not been involved in any campaign or lobbying efforts to have a particular individual appointed to the Senate;
d) Mr. Alani has not suffered any personal prejudice from Senate vacancies;
e) Mr. Alani has not experienced any negative economic or psychological impacts from Senate vacancies;
f) Mr. Alani has not been deprived of any Charter rights he enjoys, including democratic rights, as a result of Senate vacancies; and
g) Mr. Alani has never asked anything of the Senate or been involved in the Senate’s business such that he might be denied a benefit or a service he would otherwise be entitled to as a result of Senate vacancies.”

The Attorney General of Canada, representing the Prime Minister through the Department of Justice, has not abandoned these arguments even after the change in government. The previous government asked the Federal Court to summarily dismiss the case in early 2015 on the basis that it’s “plain and obvious” that the challenge had no possibility of success. Last May, Justice Sean Harrington denied the government’s motion, allowing the case to proceed to a full hearing. Later this month, on January 25th, the Federal Court of Appeal is scheduled to hear arguments on the government’s appeal of Justice Harrington’s refusal to dismiss the case.

If the government is upheld in its position that Courts cannot issue a declaration as to whether a Prime Minister must advise the Governor General to fill Senate vacancies, compliance with the express text of Constitution will be beyond the purview of the Canadian judiciary. (Unless, of course, the Court orders the Governor General to fill the vacancies — a prospect this writer considers unpalatable.) Accountability, if any, will be limited to the political process. This could mean relying on voters to voice any frustration with perceived non-compliance with the Constitution at the ballot box, or relying on the Governor General to take exceptional measures to remedy the situation (e.g., dismissing an uncooperative Prime Minister, or, as some have suggested, making the appointments without advice). In either case, a quintessentially legal determination as to what the Constitution does and doesn’t require will be made without the benefit of any guidance from judges — whose primary role, after all, is to interpret the law.

The government’s position that courts have no role to play in enforcing constitutional conventions isn’t entirely unreasonable. As Professor Peter Hogg writes, “conventions allow the law to adapt to changing political realities without the necessity of formal amendment.” The orthodox view holds that Courts should avoid pronouncing on conventions because, in doing so, the theoretical flexibility of the conventions is lost. The problem with relying on conventions to evade judicial oversight, in my view, is two-fold.

First, the only convention said to be at play here – namely, that the Governor General won’t appoint Senators except on the advice of the Prime Minister – is neither in dispute nor the “rule” sought to be enforced. The Governor General hasn’t, as far as we know, refused the Prime Minister’s recommendations for filling Senate vacancies; rather, the advice hasn’t been given at all. Based on the established case law, the Courts would be powerless to stop a Governor General from exercising his or her legal right to appoint Senators, even if he or she did so contrary to convention by ignoring a Prime Minister’s recommendations. To do so, a Court would need to recognize (as the Supreme Court of Canada has already done) and enforce the convention in the face of a conflict with the Constitution. No such conflict exists here, and any ruling premised on the existing convention would naturally lose its force in the unlikely event the convention were ever modified (e.g., to transfer the effective exercise of the Governor General’s appointment power to anyone other than the Prime Minister.)

Second, the case law that says constitutional conventions are legally unenforceable is out of step with recent developments in constitutional interpretation.

Over three decades ago – before the Charter, even – the Supreme Court of Canada borrowed from 19th Century British constitutional theorist A.V. Dicey when grappling with a reference question brought by Prime Minister Pierre Trudeau concerning whether there was a legal requirement for provincial consent to patriate the Constitution. In the absence of a constitutional amending formula, the Court relied on the idea of constitutional conventions – political rules, the content of which could be determined by the Courts but never legally enforced – to conclude that although there was no legal barrier to Parliament unilaterally inviting the United Kingdom to amend Canada’s Constitution, by “convention” the request would not be made without substantial provincial consent.

Drawing on conventions to resolve a political crisis might have worked in 1981, but our understanding of the Constitution has evolved significantly since then.

In 1998, the Supreme Court of Canada defused another political crisis by resorting to “unwritten principles” of the Constitution to explain how and why the rest of Canada “would have no basis to deny the right of the government of Quebec to pursue secession”. More recently, in the Senate Reform Reference of 2014, the Court invoked the notion of the Constitution’s “internal architecture” based on “assumptions that underlie the text and the manner in which the constitutional provisions are intended to interact with one another”.

Simply put: if unwritten principles and the Constitution’s internal architecture can be used to fill in the gaps in its written text to define legally enforceable rights and duties, it makes no sense to immunize a Prime Minister from judicial scrutiny merely because a constitutional convention bridges the gap between the legal fiction that gives the Governor General nearly unlimited power on paper and the modern reality of responsible government that transfers power to our elected officials.

The Attorney General’s argument about who is entitled to challenge a Prime Minister’s inaction has broader implications. The government’s line of questioning during cross-examination, as reflected in its written arguments, suggests a mindset that individual Canadians have no business challenging the government in Court unless they can point to concrete harm they’ve suffered as a result. This argument harkens back to Mr. Harper’s statement last July that “The vacancies will continue to rise and other than some voices in the Senate and some people wanting to be appointed to the Senate, nobody is going to complain.” If and when someone does complain, the government’s response seems to be that they have no right to do so.

Who, other than a private individual, might bring such a challenge?

Non-governmental organizations frequently run public interest test cases, although, as lawyers from the Department of Justice pointed out in cross-examination, “there is no public advocacy or other organization devoted to the issue of filling senate vacancies”.

Provinces also typically play a key role in challenging exercises of federal power. Notably, however, none of the provincial or territorial governments has demonstrated a willingness to litigate the issue directly, although each has been invited (twice) to participate in the Federal Court proceedings and each has the ability to unilaterally refer constitutional issues to its own Court of Appeal. Reflecting on this point, the federal government argues that “the only reasonable inference that can be drawn from this fact is that, in the context of competing demands for time and attention to matters of public policy, expending scarce judicial resources on an advisory opinion regarding the timing of Senate appointments is not a high priority for any government at the present time.”

The provincial governments’ apparent ambivalence might also be explained by the perception that provincial politicians compete for “credit” in advancing provincial interests at the federal level. To the extent that Senators appointed to represent regional interests might “steal the thunder” of provincial premiers, it’s perhaps not surprising that provincial attorneys general have been thus far willing to sit on the sidelines.

An Exit Ramp for Government

If there’s a problem in need of a solution here, what could the current government do to solve it? Absent a constitutional amendment (for which there’s undoubtedly zero appetite) anything the current government does directly could be “un-done” by a subsequent Parliament. That said, Parliament can contribute to the setting of goalposts by legislating some ground rules.

In 2007, Senator Wilfred Moore (a Chrétien appointee) introduced a bill that would have imposed a 180 day time limit on the Prime Minister for recommending appointments to fill Senate vacancies. It was modelled after the equivalent time limit for calling a by-election to fill vacancies in the House of Commons. At the time, Prime Minister Harper had allowed a number of Senate vacancies to accumulate, so it was arguably self-sacrificing for a then-Liberal dominated Senate to champion legislation that would have presumably resulted in Conservative appointments. (The bill languished in the Conservative-controlled House of Commons, and never became law.)

Codifying through legislation the Prime Minister’s obligation to fill Senate vacancies would eliminate many of the procedural objections raised by the federal government in response to the Senate vacancies litigation. A reviewing Court would likely defer substantially to any cogent proposal advanced by legislators; indeed, Courts often order that Parliament craft a solution that conforms broadly to general principles set out in their reasons for judgment, thus allowing elected representatives to “hold the pen” on how compliance will be achieved.

Parliament could enact a “flat rate” time limit (such as the 180 day time limit used for by-elections) or establish a more nuanced principles-based framework for assessing the timeliness of appointments (e.g., based on whether the vacancy arose out of an anticipated mandatory retirement, the existing level of regional representation undermined by the vacancy, allowing for transition between governments, etc.). Either way, the present government could lead by example and distinguish itself from the previous regime’s approach of sticking one’s head in the sand and hoping nobody notices. In doing so, the government would make it politically and legally more difficult (but not impossible) for future Prime Ministers to shirk their undoubted constitutional duties.

Plus, the Attorney General might even be able to put to bed another one of those litigation files she inherited from her predecessor.