A Vancouver attorney has won the right to press a Federal Court claim to fill Senate vacancies. A judge rejected a Government of Canada motion that the entire case be struck as frivolous.
“I’m pleased,” said attorney Aniz Alani, who filed the claim. “The test for a motion to strike is a very high threshold that the government needs to meet, and I’m pleased to see the Federal Court agree that it’s not obviously a loser.”
Prime Minister Stephen Harper told reporters last August 23 he had “no immediate plans” to name any new appointees after three Conservative senators were criminally charged or suspended in an expense scandal. The 105-seat chamber currently has only 82 senators due to resignations and mandatory retirements; another five senators are due to retire over the next year as they reach age 75.
The Senate cannot meet without a quorum of at least fifteen members. “Certainly at some stage senators have to be appointed,” Justice Sean Harrington wrote in allowing the lawsuit to proceed. “If there were to be no quorum, Parliament could not function as it is composed of both the House of Commons and Senate.”
If no more senators were ever appointed the Senate would dwindle to fifteen members by 2027. In his lawsuit, Attorney Alani argued that long-term vacancies breach the 1867 Constitution Act. The law states in section 32, “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.”
Twenty vacancies have occurred in the Senate since the Prime Minister named his last appointee, Scott Tannas of Alberta, in 2013. “The government’s argument is that this is a political matter,” Alani said. “If they’re correct, that the court is not an appropriate forum to decide when Senate vacancies must be filled; then it’s up to voters.”
Vacancies have left Ontario without six Senate appointees followed by Québec (5); Manitoba (3); Nova Scotia and New Brunswick (2 vacancies each); British Columbia and Prince Edward Island (one each). “The judge reached an appropriate decision, at least on the government’s attempt to shut the case down before it actually got a hearing,” said Prof. Emmett Macfarlane of the University of Waterloo.
“There’s a difference between a court finding, and making a declaration that there’s an affirmative duty on the Prime Minister to make appointments to the Senate,” said Macfarlane. The lawsuit seeks a court declaration that “the Prime Minister of Canada must advise the Governor General to summon a qualified person to the Senate within a reasonable time after a vacancy happens in the Senate.”
Harper is the only prime minister in Canadian history to announce a Senate appointment on his first day in office, and the only prime minister to name 11 senators on a single day: January 2, 2009.
By Dale Smith