Justiciability of Senate Non-Appointments
Can a court require the Prime Minister to appoint senators? Having been embarrassed (apparently through no fault of his own) by scandals involving his past picks, Mr. Harper is in no hurry to name any new senators to replace retirees. And the leader of the opposition, Mr. Mulcair, has vowed not to appoint any senators if he is elected Prime Minister, in an attempt to stimulate constitutional reform. Right now, a Vancouver lawyer, Aniz Alani is challenging the non-appointment of senators in Federal Court: further information is available on his website. A motion to strike his application for a declaration will be heard shortly.
In its motion to strike, the government raises two issues. A justiciability issue and a jurisdictional issue. In light of the recent decision in Hupacasath First Nation v. Canada (Attorney General), 2015 FCA 4 (discussed here), I think the issue is justiciable and that the Federal Court has jurisdiction to hear it. However, I also think that the most likely outcome of a decision in the challenger’s favour on the merits would be a declaration couched in such broad terms as to have little legal or political effect.
On justiciability, the federal government argues that Mr. Alani is asking the courts to enforce a constitutional convention, viz. that the Governor General appoints senators on the advice of the Prime Minister. It is true that s. 32 of the Constitution Act, 1867, provides for the filling of vacant seats in the Senate: “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” (see also s. 24). According to the federal government, there is no enforceable legal duty here because the exercise of this power is a matter of convention, not law.
It is true that the Governor General cannot be compelled to name senators. And it is also true that constitutional conventions are, strictly speaking, unenforceable in the courts. The difficulty with this argument is that it conflates form and substance. In form, the appointment of senators is a power of the Governor General. But in substance, it is a power exercised by the Prime Minister, the non-exercise of which would imperil the constitutional order because it would ultimately emasculate the Senate, a body whose consent is needed for bills to become law. If the Prime Minister fails to exercise that power, it would alter the architecture of the Constitution; it would “modify the Senate’s role within our constitutional structure as a complementary legislative body of sober second thought” (Reference re Senate Reform, 2014 SCC 32, at para. 54).
Indeed, it might be more appropriate to speak of the Prime Minister as having a legal duty to name senators, a duty to ensure that the constitutional architecture is not altered. Failing to name senators for appointment by the Governor General would violate this duty. Indeed, a blanket policy of non-nomination — as Mr. Mulcair countenances — would cause a fundamental weakening of the constitutional structure, by hollowing out one of its legislative pillars.
Seen in this light, the courts are not being asked to enforce a convention; they are being asked to safeguard the constitutional architecture. At most, they are being asked to recognize the convention that the Governor General acts on the advice of the Prime Minister, something well within the judicial role. But if there is no advice — in spite of the duty to provide it — there is no convention worth speaking of. And so the courts can recognize that the Prime Minister has a legal duty to give advice about Senate appointments.
On jurisdiction, I think HFN provides a compelling response to to the federal government’s argument that a failure to nominate senators does not fall within the terms of the Federal Courts Act. There, the Federal Court of Appeal rejected the suggestion that its jurisdiction depended on a fine distinction between plain-vanilla and ‘pure’ prerogative:
An interpretation that the Federal Court has the power to review federal exercises of pure prerogative power is consistent with the Parliament’s aim to have the Federal Courts review all federal administrative decisions. The contrary interpretation would carve out from the Federal Courts a wide swath of administrative decisions that stem from the federal prerogative, some of which can have large national impact (at para. 54).
A failure by the Prime Minister to perform a legal duty would fit comfortably in the category of “federal administrative decisions”. It is “a decision made by the Government of Canada” (at para. 72).
The federal government might reply that a ‘constitutional power’ is at issue here, rather than a ‘pure’ prerogative. For the reasons given above in respect of justiciability, I doubt this is the case: the constitutional power to appoint senators is the Governor General’s, the duty to name them is the Prime Minister’s. In any event, I doubt that a fine distinction between powers and prerogatives will persuade the Federal Court that it does not have jurisdiction. It is also worth remembering that if the Federal Court does not have jurisdiction, then the provincial superior courts have it by default. But this is the sort of issue with a “large national impact” that deserves a unified response from the federal courts, rather than piecemeal responses from superior courts across Canada that are not bound by the decisions of their peers in other provinces.
Speaking of superior courts, the arguments made here by the federal government could also be made in respect of judicial appointments, which are structurally identical to senatorial appointments, formally made by the Governor General but, by convention, on the advice of the Prime Minister. If a policy of senatorial non-appointment is non-justiciable, a policy of judicial non-appointment would presumably also be non-justiciable, even if the body of active judges were reduced to zero. This conclusion is hard to countenance.
On remedy, I cannot improve on Léonid Sirota’s observations:
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.
At some point, the Senate would be so hollowed out by non-appointment that the Constitution would have been amended de facto. We are a long way from there. A declaration that Senators should be appointed in a reasonable time would be appropriate, but reasonableness would presumably depend on various political considerations. The Prime Minister might very reasonably take the view that, at the moment, the institution is functioning and the last thing the Canadian public needs is further controversy sparked by Senate appointments.
This content has been updated on February 17, 2015 at 19:21.