Government attorneys are in Federal Court tomorrow in a bid to fend off a Vancouver lawsuit to fill Senate vacancies. Twenty seats in the 105-seat chamber sit empty since the Prime Minister suspended appointments in 2014.
“He’s either legally required to do it or he’s not, and it’s the court’s role to enforce the constitution,” said Aniz Alani, a British Columbia lawyer who filed the claim; “We should have the benefit of the court’s guidance before the next election.”
The Prime Minister halted all new Senate appointments last August 23 after three Conservative members were suspended in an expense scandal. Two – Mike Duffy and Patrick Brazeau – face criminal charges, still unproven in court.
Alani noted under the wording of section 32 of the 1867 Constitution Act the Prime Minister has no choice but to immediately fill Senate vacancies as they occur: “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,” the section reads.
Alani earlier won a Federal Court judgment that the lawsuit could proceed over government objections. The Department of Justice is appealing the ruling, arguing the lawsuit is frivolous.
“Depending on how quickly the government is moving on the appeal – they haven’t taken any steps to expedite it so far – the appeal may or may not be heard before the application is,” Alani said. “In the meantime, I have to be preparing arguments for the main application.”
Under Senate rules a minimum 15 members are needed for quorum. “Certainly at some stage senators have to be appointed,” Judge Sean Harrington wrote in rejecting a government bid to dismiss the lawsuit out of hand; “If there were to be no quorum, Parliament could not function as it is composed of both the House of Commons and Senate.”
Another five senators will leave by 2016 as they reach the mandatory retirement age of 75. With current vacancies Ontario and Québec are short eleven members, followed by Manitoba (three vacancies); New Brunswick (two); Nova Scotia (2) and British Columbia (one vacancy).
The Prime Minister became the first in Canadian history to announce a Senate appointment on his first day in office, and the only government leader to name eleven senators on a single day: January 2, 2009.
By Dale Smith