Stephen Harper is playing at pre-election make-believe with Senate appointments. We have a Vancouver lawyer to thank for calling us back to reality.
The Prime Minister's game of pretend is in declaring he won't appoint senators. The unloved, disrespected Red Chamber has caused him a spot of bother, notably because of ill-advised appointees such as Mike Duffy and Patrick Brazeau. So Mr. Harper stopped appointing new senators back in 2013. There are now 20 vacant seats.
It is, for Mr. Harper, a way to avoid uncomfortable optics and deflect uncomfortable questions about the Senate. But the catch is that it's Mr. Harper's job to appoint senators. And one day, he will have to appoint lots of senators – at least if he's re-elected in October.
Nonetheless, Mr. Harper has said publicly that he won't. Then along came Vancouver lawyer Aniz Alani, who asked the Federal Court of Canada to declare that the PM (technically the Governor-General) must appoint senators within a reasonable time. He felt Mr. Harper was refusing to do what the Constitution requires. "For me, it's really a rule-of-law issue," Mr. Alani said in a phone interview.
Government lawyers tried to get the case dismissed, on the grounds that Mr. Alani's court action has no hope of success. But on Thursday, Federal Court judge Sean Harrington disagreed. He noted that the Senate is sometimes "a source of embarrassment" to the government, but that doesn't mean it has no duty to appoint senators.
"I know of no law which provides that one may not do what one is otherwise obliged to do simply because it would be embarrassing," Justice Harrington said.
Mr. Harper has shrugged off questions about the vacancies, saying he doesn't get a lot of calls from the public asking him to appoint senators, and doesn't need more to pass legislation.
Mr. Alani was surprised. The Constitution says the Governor in Council "shall" appoint senators to fill vacancies, and that word means they must. "It can't just be that we've got a Constitution nobody follows because on any given day it doesn't poll very well," Mr. Alani said. Politicians wouldn't make an issue of it; Mr. Alani decided he would. The 33-year-old was once a clerk to the Federal Court, so he knows this kind of law and, he said, was willing to put in the time.
Mr. Harper's unwillingness to appoint senators clashes with the fact that he's named scads of them – 59 in all. And if past practice is any guide, once he's past the election – if he wins – his reluctance will subside.
He also let Senate vacancies pile up in his first term. But after the 2008 election, he appointed 18 new senators three days before Christmas, including Mr. Duffy and Mr. Brazeau, Pamela Wallin, his chief fundraiser, Irving Gerstein, and a key Quebec political organizer, Leo Housakos.
That's not very different from what his predecessors did – Liberal and Conservative. Perhaps that's also noteworthy. In his early days in office, Mr. Harper vowed to reform the Senate. Since the Supreme Court ruled last year that Senate reform requires the consent of the provinces, he has given up. His approach to the Senate now comes down to the kind of senators he appoints.
In fact, if he's re-elected, he'll not only have to fill the 20 currently vacant seats, but 25 more due to open up in the next four-year term. All told, that would make 104 Harper appointments, more than any other PM ever.
There's no point pretending there'll be no new appointees. For that matter, any party leader should be telling us how they'd fill those 45 vacancies. That includes NDP Leader Thomas Mulcair, who vows to abolish the Senate. He wouldn't be able to accomplish that in the first few months, and would have to appoint senators.
It's possible the courts won't step in. They're often reluctant to define these kinds of Crown powers. But a PM who refused to appoint senators indefinitely would risk a crisis: He or she would be advising the Governor-General to ignore the Constitution. In theory, a Governor-General has to dismiss a prime minister who gives unacceptable advice. But that's all theoretical, of course, in a world of pre-election pretend. After Oct. 19, it's a safe bet there will be new senators.
Campbell Clark