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.