Lawyer challenges PM to seek top court’s advice on refusal to appoint senators

Prime Minister Stephen Harper is being challenged to ask the Supreme Court of Canada whether his moratorium on Senate appointments is constitutional.

OTTAWA — Prime Minister Stephen Harper is being challenged to ask the Supreme Court of Canada whether his moratorium on Senate appointments is constitutional.

Aniz Alani, a Vancouver lawyer who is already in court trying to compel Harper to fill Senate vacancies, says he’ll drop his case — and swallow his legal costs — if the prime minister agrees to send a reference to the top court, seeking its advice on the matter.

Harper announced Friday that he’s imposing a moratorium on Senate appointments — formalizing his practice for the past two and a half years of refusing to fill vacancies in the scandal-plagued, unelected upper house.

There are currently 22 vacancies in the 105-seat chamber.

Alani is already in Federal Court, seeking a declaration that the prime minister has a constitutional obligation to fill vacancies within a reasonable time; the Harper government is currently appealing Justice Sean Harrington’s refusal to dismiss the case.

Given that his case is likely to lead to further appeals and delays, Alani argues that a reference to the Supreme Court would be the quickest and most cost-effective way to resolve the matter.

“In my opinion, the Prime Minister can declare a moratorium on filling Senate vacancies no more validly than he can declare an end to the granting of Royal Assent to bills approved by Parliament or the use of French or English as an official language of Canada,” Alani says in a letter to Justice Department lawyers.

“In such cases, the requirements of the Constitution remain in effect and binding within Canada unless and until amended in accordance with the constitutional amending formulae.”

On Friday, Harper asserted that the Constitution gives the prime minister “the authority to appoint or not appoint” senators and vowed not to fill any vacancies so long as his government continues to be able to pass its legislation through the chamber.

Harper appears to think he has “untrammelled discretion whether to appoint or not appoint Senators as he sees fit,” Alani says in his letter.

He begs to differ, noting that the Constitution specifies that the governor general “shall” fill a vacancy when it arises. By convention, the governor general acts only upon the recommendation of the prime minister.

Alani emphasizes that his determination to pursue his case should not be doubted. But to save time and money, he offers to discontinue his case and waive his right to seek compensation from the government for his legal costs if Harper agrees to send the matter directly to the Supreme Court.

Harper has already sought the Supreme Court’s advice on what it would take to reform or abolish the upper house.

In a landmark ruling last year, the top court ruled that reforming the Senate would require a constitutional amendment approved by at least seven provinces representing 50 per cent of the population. Abolishing the Senate would require unanimous provincial consent.

In that ruling, the court also made clear that Harper’s policy of refusing to fill vacancies can not continue indefinitely. It said the Senate can’t be abolished indirectly by letting its numbers drop to zero.

Harper said Friday his moratorium is intended to put pressure on the provinces, who have opposed his attempts to reform the Senate, to either come up with their own reform proposals or conclude that abolition is the only answer.

However, some constitutional experts have predicted that one or more provinces will eventually go to court to demand that Harper fill their constitutionally-entrenched share of Senate seats.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

People board and leave at the Century Park light-rail transit station in Edmonton on Friday, Feb. 26, 2021. THE CANADIAN PRESS/Jason Franson
‘Racism is a real problem:’ Growing number of attacks against Black Muslim women

‘Racism is a real problem:’ Growing number of attacks against Black Muslim women

Alberta Health Services declared a COVID-19 outbreak at Revera Aspen Ridge on Feb. 1. (Photo by Advocate staff)
Two COVID deaths linked to Revera seniors residence in Red Deer

35 active COVID cases at seniors residence

Red Deer musician Lorry Boschman has written a song about love in the time of COVID-19. Proceeds from his single, Romance during a Pandemic, will be donated to the local United Way. (Contributed photo).
Local musician records a song about love in the time of COVID-19 — for charity

Lorry Boschman will donate some proceeds to the United Way

Preliminary data shows Alberta’s suicide rate declined in 2020 — but some mental health critics say it’s too early to draw any conclusions since more dire pandemic impacts are only now being felt. (metrocreative stock)
Alberta’s suicide rate seems to have declined in 2020

But some experts say it’s too early to credit the pandemic

Red Deer Regional Hospital Centre can accommodate up to 20 patients requiring a ventilator, says Alberta Health Services.  File photo by Advocate staff
Opinion: UCP government reneging on Red Deer hospital funding

Another year, another Alberta budget and another blow to central Albertans. Budget… Continue reading

Seattle Storm guards Sue Bird, right, and Jordin Canada pose for photos Wednesday, March 3, 2021, on the roof of the Space Needle in Seattle after they raised a flag with the team's new logo on it. Bird re-signed with the Storm earlier in the week. (AP Photo/Ted S. Warren)
Sue Bird staying busy with 20th Seattle season on horizon

Sue Bird staying busy with 20th Seattle season on horizon

Lille players celebrate after Jonathan David scored his side's second goal during the French League One soccer match between Lille and Marseille at the Stade Pierre Mauroy stadium in Villeneuve-d'Ascq, France, Wednesday, March 3, 2021. (AP Photo/Michel Spingler)
David scores 2 as Lille wins to stay two points clear of PSG

David scores 2 as Lille wins to stay two points clear of PSG

Canada defender Shelina Zadorsky, right, passes the ball in front of Argentina forward Sole Jaimes (9) during the second half of a SheBelieves Cup women's soccer match, Sunday, Feb. 21, 2021, in Orlando, Fla. Alphonso Davies and Shelina Zadorsky have been named Canada Soccer’s players of the month for February. THE CANADIAN PRESS/AP, Phelan M. Ebenhack
Davies, Zadorsky named Canada Soccer’s players of the month for February

Davies, Zadorsky named Canada Soccer’s players of the month for February

Manchester United's Fred, left, and Crystal Palace's Jordan Ayew challenge for the ball during the English Premier League soccer match between Crystal Palace and Manchester United at Selhurst Park stadium in London, England, Wednesday, March 3, 2021. (Mike Hewitt/Pool via AP)
Grueling season starting to catch up with Man U, Leicester

Grueling season starting to catch up with Man U, Leicester

Gary Sanchez goes deep, Yankees hit three home runs to beat Blue Jays 4-1

Gary Sanchez goes deep, Yankees hit three home runs to beat Blue Jays 4-1

Toronto Raptors guard Norman Powell (24) dunks as Detroit Pistons center Andre Drummond defends during the second half of an NBA basketball game in Detroit, Friday, Jan. 31, 2020. The undermanned Toronto Raptors, down five players and six members of their coaching staff due to health and safety protocols, are scheduled to host the Detroit Pistons in their first action since last Friday. THE CANADIAN PRESS/AP-Carlos Osorio
Powell, Lowry do their bit but undermanned Raptors beaten handily by the Pistons

Powell, Lowry do their bit but undermanned Raptors beaten handily by the Pistons

Canada's Ghislaine Landry, left, runs past France players during the Women's Rugby Sevens World Cup in San Francisco, Friday, July 20, 2018. The HSBC World Rugby Sevens Series, grounded last year by the pandemic, will return for the women in May. THE CANADIAN PRESS/AP-Jeff Chiu
World Rugby unveils condensed 2021 sevens schedule with Vancouver a question-mark

World Rugby unveils condensed 2021 sevens schedule with Vancouver a question-mark

Most Read