PM urged to Consult top court on Senate
• 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.