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.

8 thoughts on “Please Advise

  1. The rule was certainly never intended to be judicially enforced, but then again, I doubt the Fathers of Confederation ever imagined that at some point in the future Prime Ministers would decide not to appoint new Senators.

    According to Wikipedia, there are currently 13 vacancies. I have done a quick tally, and assuming that the next election is in October of this year, by the following election in October 2019, there will be an additional 27 vacancies, for a total of 40 vacancies. This, of course, does not take into account death or resignation. But, all things being equal, the Senate will be down to about 60% of its maximum members.

    For the purposes of any kind of quorum, the Senate has a long ways to go before it hits crisis levels. But that certainly does mean that Senate committees will start having some problems in the next few years. I’m assuming that is part of the grand scheme, to render the Senate sufficiently useless that eventually a Federal Government can go to the Provinces and say “You see, the Senate is nothing more than a rubber stamp now.”

    Obviously all of this violate the intent of the British North America Act, but some might reasonably argue, and have argued since almost the beginning of Confederation, that the Senate has not fulfilled its function as some sort of regional check on the Federal government (or as the Maritime provinces put it in 1867, a check on Ontario and Quebec). Whether a court is ever going to interfere with what amounts to a Canadian Royal Prerogative is something I wouldn’t want to hazard a guess, and as an actual crisis in the number of Senators is some time off, there probably is not the sense of urgency that would see a court want to interject itself into such a rarefied constitutional area.

    There will inevitably come a point, if successive Prime Ministers refuse to fill vacancies, the courts refuse to intervene (I’m not even sure what that would look like in this case), or Parliament and the Provinces don’t come to some agreement on reforming or abolishing the Senate, when a future Governor General will be faced with competing constitutional prerogatives. Clearly, as I say above, Mulcair’s gambit is to force Parliament and the Provinces at some indeterminate time in the future to open up the Constitution. Harper’s gambit seems simpler; he simply does not want to be humiliated by any more bad Senate appointments.

    If the status quo remains (no new appointments,no judicial interventions, and no constitutional reforms to the Senate), at some point a Governor General is going to be forced into a corner where the only solution seems to be obey the letter of of the Constitution, while violating the conventions that surround Section 32. Still, as I say above, that crisis is one of the next decade.

    • The Wikipedia page is partly wrong. There are currently 17 vacancies, which is noted in the “Composition” section of the wiki article. More details including historical vacancies dating back to 1867 are available here: http://bit.ly/1yBJR7p

      • Well that’s a darned interesting niche on Parliament’s site. It looks like Pierre Trudeau let appointments slide; 21 vacancies in December 1983. Looks like we’ve got a ways to go yet.

  2. Fascinating. So there’s actually nothing shocking in the current numbers, by historical standards, although they are still high. What is different, I guess, is this stated intent not to appoint ― indefinitely on the PM’s part, and ever on that of the Leader of the Opposition. (Though I, for one, wouldn’t be surprised to see the PM resume appointments, once he decides they are no longer a political liability ― say after the election, if he wins.)

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