National Post

PM urged to Consult top court on Senate

- By Joan Bryden

• 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 he is imposing a moratorium on Senate appointmen­ts, after 2½ years of refusing to fill vacancies in the scandalpla­gued, unelected upper house.

There are 22 vacancies in the 105-seat chamber.

Alani is already in Federal Court, seeking a declaratio­n the prime minister has a constituti­onal obligation to fill vacancies in a reasonable time; the Harper government is 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 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.”

Friday, Harper asserted 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 the Constituti­on specifies 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 his determinat­ion to pursue his case should not be doubted. But to save time and money, he offers to discontinu­e it 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 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 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.

 ?? Adrian Wyld / the Canadian Pres ?? The Senate chamber sits empty in Ottawa. A Vancouver lawyer has launched a court challenge to have
senate vacancies filled.
Adrian Wyld / the Canadian Pres The Senate chamber sits empty in Ottawa. A Vancouver lawyer has launched a court challenge to have senate vacancies filled.

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