This week, Prime Minister Stephen Harper announced that there would be no further Senate appointments on his watch – either the Senate will be abolished or there will have to be substantial reforms to the Senate before he alters this position. The Prime Minister says that it is up to the provinces to come up with a solution. This is apparently part of his election platform. The question has to be posed: is the Prime Minister acting unconstitutionally?

There are currently 22 vacancies in the Senate. The majority of the sitting Senators are Conservatives and so the Senate can approve and has been approving the House of Commons’ bills. So, some might argue that it is performing its function. The Prime Minister presumably would make that argument. To him, it would seem, the only current (acceptable) role for the Senate is to rubber-stamp his government’s legislative initiatives. But to take that perspective, one must ignore virtually all of the jurisprudence on the role of the Senate.

Indeed, in Reference re Senate Reform, 2014 SCC 32, the Supreme Court of Canada made it abundantly clear that the Senate’s constitutional function was quite different than that of the House of Commons. The Senate is to be an appointed body for second sober thought. It is also supposed to be representative of Canada’s regions – at least as they were conceived at or in the 30-40 years after Confederation.

While Prime Minister Harper may not like the fact that this is the Senate’s constitutional role, there can be no doubt that this is its current function. And it is also clear that, with an ever decreasing complement of Senators, the Senate’s ability to fulfill its constitutional responsibilities becomes more and more strained. With fewer members and with some regions and provinces being disproportionately de-Senatorized, how can the Senate properly operate as a contemplative, regionally sensitized legislative body? Its capacity to so act is clearly becoming impaired.

Historically, the Governor General makes Senate appointments on the advice of the Prime Minister. In fact, the Constitution Act, 1867, does not refer to any requirement of prior prime ministerial advice. That “requirement”, if it is a requirement, has been the product of our “unwritten” constitution. Instead, section 24 of the Constitution Act, 1867, speaks of the Governor General “summoning” qualified persons to become Senators.

So what happens when the Prime Minister deliberately stops providing such advice? Based on the plain text of the Constitution, it would seem that it is the Governor General who has the ultimate constitutional responsibility to issue Summons to qualified persons. Section 32 states:

32. When a Vacancy happens in the Senate by Resignation, Death or otherwise, the Governor General shall by Summons to a fit and qualified Person fill the Vacancy.

The fact that the Governor General is presently respecting the constitutional practice that has developed over the nearly one and a half centuries of our existence, namely, that “Summons to fit and qualified Persons” have been issued only on the advice of the Prime Minister, does not mean that this practice can override the express written requirements of the Constitution. At some point (and maybe that point is nigh), the Governor General must act and act unilaterally if necessary.

So I started this post by asking: is the Prime Minister acting unconstitutionally? I would have to say “no”. There is not an express constitutional requirement that he provide advice to Governor General as to who should be appointed to the Senate. But if I changed the question slightly and asked instead “is the Prime Minister not respecting the Constitution?”, I would have to say “yes”.

The Prime Minister’s announcement of the moratorium shows a profound misunderstanding of the obligation that is placed on each branch of government to uphold the Constitution, — in essence, to support and nurture and sustain the fundamental concept of “rule of law”. And this is the supreme law of Canada that we are talking about here. By withholding his advice as to whom the Governor General should summon to the Senate, the Prime Minister is purposefully impairing the constitutional function of the federation. It should not be left to the judicial branch to catch him if it can for any breach of the Constitution. Each actor within the Canadian federation, each branch of government, each component, should act to support the proper constitutional functioning of the country. It should be a cooperative, collaborative effort, not a competitive one.

Professor Adam Dodek wrote an excellent op ed piece in Wednesday’s Globe & Mail. In his article entitled “PM’s constitutional disobedience a dangerous game to play” (July 29, 2015), Professor Dodek makes the case that the Governor General is sort of a “constitutional 9-1-1 in cases of emergency”. Such as,… if the Prime Minister fails to advise the Governor General to dissolve Parliament after 5 years as the Constitution requires. And, he suggests, such as,… if the Prime Minister fails to advise the Governor General who should be summoned to the Senate.

As Professor Dodek points out, the Prime Minister has never even met with the premiers to see what sorts of Senate reforms can be achieved. It is disingenuous to suggest that it is the provinces’ fault that the Senate has not been reformed. If the Prime Minister does not like the role that the Senate has within our federation, if he does not like the way it is constituted or the way its members are selected, then the proper path to take is to enter into discussions with the provinces to seek constitutional amendments that will result in a modernized Senate or, alternatively, an abolished Senate. In other words, be a Prime Minister and stand up to the Premiers and discuss with them what he thinks should be done with the Upper House. To shirk his responsibilities and to disrespect the Constitution is not the path that the highest court in the land has so recently outlined for him.

For the record, I do not like the way the Senate is currently structured. I do not like the way its members have been appointed. I do not think that the Senate is as effective as it should be, especially given its existing role as a chamber of second sober thought (and in so saying, I do not want to be understood as denigrating the many members of that chamber who do take their job very seriously). But, until we undertake the job of amending the provisions of the Constitution relating to the Senate, I will support and insist upon the constitutional rights and responsibilities that the Constitution bestows upon the Senate, its members and the actors who must work with it. And that includes the Prime Minister.

I remain

Constitutionally yours,

Arthur Grant