Adam Dodek is a founding member of the University of Ottawa's Public Law Group and the author of The Canadian Constitution (Dundurn 2013).
One of my favourite short stories is Herman Melville's Bartleby the Scrivener. Bartleby works for a lawyer as a "scrivener", a human Xerox in an age before photocopiers. He spends his days copying out legal documents until one day when asked to perform a task, he simply says "I prefer not to." And Bartleby refuses to do any more work.
Prime Minister Stephen Harper has pulled a Bartleby in announcing a moratorium on appointing Senators to the Red Chamber.
Constitutionally, Mr. Harper does not have this power to refuse to appoint senators. Our Constitution vests a lot of formal power in the Governor-General: the power to appoint senators; the power to dissolve or prorogue Parliament; the power to appoint members of cabinet; the power to add members to the Senate; name and remove a Speaker; and provide Royal Assent to bills.
In each of these cases (save with possible exceptions of prorogation and dissolution in extreme situations), the Governor-General acts only on the advice of the Prime Minister.
What happens when the Prime Minister refuses to provide such advice? In extreme cases, there is no question that the Governor-General would be forced to exercise such power without advice. For instance, the Constitution provides that no House of Commons shall last longer than five years (except in cases of real or apprehended war, invasion or insurrection). There is no question that if a Prime Minister refused to advise the Governor-General to dissolve Parliament before that deadline, the Governor-General would have not only the power but also the duty to do so.
In announcing a moratorium on further Senate appointments, the Prime Minister is committing an act of constitutional disobedience. His justifications simply do not pass muster. The asserted cost savings of $6-million annually does not compare well with the bevy of spending on government advertising and other government initiatives. The other assertion is that the moratorium will force the provinces over time to come to an agreement regarding reform or abolition. Considering that the Prime Minister has never met with the premiers to discuss Senate reform, let alone made any concerted effort to find common ground with the provinces, this justification is similarly baseless.
It is not as if the Prime Minister is stymied by the Senate: the Prime Minister controls appointments; the Prime Minister controls Senate proceedings by virtue of his party having a majority in the Upper Chamber; and as the Senate expenses scandal has shown, the PMO involves itself in the minutiae of Senate operations.
Mr. Harper's announcement of a moratorium is another example of this Prime Minister's penchant for federal unilateralism – the desire to act alone without consultation or co-operation with other relevant constitutional actors, in this case the provinces. Federal unilateralism is both the theme and the explanation for the Senate reform.
The problem is that our Constitution requires co-operative federalism – the federal government and the provinces working together – on a host of issues.
Many of the "rules" of our Constitution are unwritten. Some are so obvious that they had never been discussed before: the Prime Minister cannot simply let the Senate wither away and die. The Prime Minister seems intent on challenging this and other constitutional rules by his acts of overt constitutional disobedience. In so doing, he is not only making it much harder for government lawyers to defend his policies in court, but he is playing a game of constitutional chicken.
Our Constitution is based on the notion that the prime minister advises the Governor-General. But it also makes the Governor-General a sort of constitutional 9-1-1 in cases of emergency. The more the Prime Minister shirks his constitutional duties, the more he provides a basis for the Governor General to exercise independent powers that are normally held in reserve.
In the end, Bartebly simply "prefers not to" eat and eventually dies. This is the fate that awaits the Senate if the Prime Minister continues his acts of constitutional disobedience. It is a dangerous game of constitutional chicken that is best avoided.