PM should ask top court about Senate, lawyer says

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 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.”

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