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Could Governor General David Johnston have to decide what to do if no senators are appointed?

It could come to this. As of today, the Senate has 11 vacancies. By the end of the year, there could be as many as 17. According to some reports, the Prime Minister is loath to appoint any new senators. What would happen if Prime Minister Harper, still stinging from the rebuke by the Supreme Court of Canada, simply chose to not appoint any more senators? Assuming that he was able to stay in government long enough, over time, the Senate as a functioning institution would cease to exist.

Could this de facto constitutional amendment, one committed by inaction rather than action, bring about the abolition of the Upper House? A fascinating piece authored by James Cudmore of CBC News, “Is Stephen Harper obliged to fill empty Senate seats?” examines this issue. Mr. Cudmore interviews political scientists, Emmett MacFarlane and Philippe Lagasse, and eminent constitutional lawyer, Peter Hogg. While Mr. Cudmore’s article does not purport to present a definitive response to the question posed by the article’s title, it is certainly thought provoking.

Professor Lagasse is recorded as postulating that, if by refusing to appoint so many senators, the Prime Minister effectively and unilaterally fundamentally restructures the architecture and operation of the Canadian Parliament, at some point, the Governor General would be driven to the conclusion that the Prime Minister was acting unconstitutionally and have grounds to dismiss him. Now that would be interesting….

I recommend heartily that you review Mr. Cudmore’s article. The Prime Minister would do well to consider the article as well. In an earlier post “Stop in the name of love (or the Constitution) – the Supremes Block the Government’s Plans for Senate Reform” (April 25, 2014) prepared after the Supreme Court rendered its decision in Reference re Senate Reform, 2014 SCC 32, I wrote in relation to the abolition of the Senate:

Insofar as the proposal to simply abolish the Senate on the basis of the general amending formula, the Court dismissed the Attorney General for Canada’s argument as again putting “form over substance”. The Court concluded {para. 110]:

The review of constitutional amendments by an upper house is an essential component of the Part V amending procedures. The Senate has a role to play in all of the Part V amending procedures, except for the unilateral provincial procedure. The process of constitutional amendment in a unicameral system would be qualitatively different from the current process. There would be one less player in the process, one less mechanism of review. It would be necessary to decide whether the amending procedure can function as currently drafted in a unicameral system, or whether it should be modified to provide for a new mechanism of review that occupies the role formerly played by the upper chamber. These issues relate to the functioning of the constitutional amendment formula and, as such, unanimous consent of Parliament and of all the provinces is required under s. 41(e) of the Constitution Act, 1982.

It is clear, in my view, that the Supreme Court of Canada views the continued participation of the Senate as an essential component of the Canadian constitutional framework and only a constitutional amendment pursuant to s. 41(e) (requiring unanimity of the provinces) could change that. It follows, therefore, that the continued existence of the Senate is essential to the proper constitutional functioning of our federation. I will write later about the importance of the concept of rule of law, and how it is important that that concept be fostered not only in the courts, but also in the legislatures, the executives and the citizenry of the country (and I must give credit to Simon Potter, former President of the Canadian Bar Association, who made this point at his speech at the Conference of the Constitutional Law and Human Rights Section of the CBA on June 27, 2014). I will say now, however, that, if the Prime Minister is seeking to abolish the Senate by a deliberate choice not to appoint senators, he would be acting contrary to the Constitution of Canada and he would be undermining the principle of rule of law. I trust that that is not the case but we should all remain vigilant in protecting that fundamental constitutional principle and in upholding our Constitution.

I remain

Constitutionally yours

Arthur Grant