Cabinet is widening a legal battle over whether Senate vacancies must be filled by the Prime Minister. The government is appealing a Federal Court ruling that the case proceed after federal attorneys argued the claim was frivolous.
“It’s difficult to avoid the inference that the respondents are trying to drag this out,” said Aniz Alani, a Vancouver attorney who filed the original lawsuit to appoint more senators. There are currently 20 vacancies in the 105-seat chamber, with another five senators due to leave within a year as they reach the mandatory retirement age of 75.
Prime Minister Stephen Harper halted all new Senate appointments last August 23 after three Conservative senators were suspended in an expense scandal. Two – Patrick Brazeau and Mike Duffy – subsequently faced criminal charges, still unproven in court.
Alani said he’d hoped to have his legal claim settled by this October’s federal election till the government responded with a series of challenges, first arguing the lawsuit should be dismissed as pointless, and then appealing the ruling of a federal judge that it was worthy enough to proceed.
“They have in correspondence vigorously opposed any effort to expedite the hearings,” said Alani; “I suppose I always considered it was a possibility they could do that, but wanted to give them the benefit of the doubt.”
Alani argues that under the 1867 Constitution Act the Prime Minister has no choice but to immediately fill Senate vacancies as they occur. Under section 32 of the Act, “When 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.”
Prof. Adam Dodek of the University of Ottawa law faculty said the lawsuit illustrates a valid constitutional point. “The case raises the important issue of whether there is any legal recourse if the Prime Minister simply refuses to appoint persons to the Senate,” Dodek said. “In other words, is it legally permissible for the Prime Minister to simply let the Senate wither away into nothingness?”
Federal Judge Sean Harrington, who earlier rejected the government’s claim the issue was not a court matter, wrote that new senators will eventually have to be appointed as age and attrition take their toll. “Certainly at some stage senators have to be appointed,” Harrington wrote. “If there were to be no quorum, Parliament could not function as it is composed of both the House of Commons and Senate.”
The Senate requires a quorum of 15 members. It currently has 82.
By Dale Smith 
