Governor General David Johnston If you've been paying attention
to national news at all over the
last few years you'd know the
Canadian Senate is currently
stuck in a never-ending scandal
regarding expenses. The scandal
has produced a number of
possible remedies. Prime
Minister Stephen Harper upped
the ante last week by saying he
would not appoint anymore
senators in an effort to try and
bring the provinces to the table
(their support being needed if
the Upper Chamber is to be
changed in any meaningful way).
Given how much the Senate Scandal has burned the Prime
Minister I can't imagine he is in any hurry to appoint anyone
else to that body. However, this strategy is already being
challenged in court by Aniz Alani, a BC lawyer. He is
seeking to get the courts to rule on whether the Prime
Minister is constitutionally required to name senators or not.
to national news at all over the
last few years you'd know the
Canadian Senate is currently
stuck in a never-ending scandal
regarding expenses. The scandal
has produced a number of
possible remedies. Prime
Minister Stephen Harper upped
the ante last week by saying he
would not appoint anymore
senators in an effort to try and
bring the provinces to the table
(their support being needed if
the Upper Chamber is to be
changed in any meaningful way).
Given how much the Senate Scandal has burned the Prime
Minister I can't imagine he is in any hurry to appoint anyone
else to that body. However, this strategy is already being
challenged in court by Aniz Alani, a BC lawyer. He is
seeking to get the courts to rule on whether the Prime
Minister is constitutionally required to name senators or not.
So what does the constitution say on the matter? Section 24
states that "The Governor General shall from Time to Time,
in the Queen’s Name, by Instrument under the Great Seal of
Canada, summon qualified Persons to the Senate; and,
subject to the Provisions of this Act, every Person so
summoned shall become and be a Member of the Senate and
a Senator." Note that the constitution refers only to the
Governor General, not the Prime Minister. This is a vital fact
being lost in the whole story. Mr. Alani's court challenge
focuses on whether the Prime Minister has to render advice to
the Governor General. However, this advice is a convention,
not a law or legal precedent. And as any student of Canadian
law will tell you the courts don't rule on conventions. So it
would appear that the main thrust of the court challenge will
fail. The courts may weigh in on another issue though. The
courts may well state that the Governor General must make
appointments to the Senate. This would be in line with what
the constitution actually says. The courts have already stated
that the Senate cannot be allowed to simply whither away
through non-appointment. Another ruling would cement this
principle.
states that "The Governor General shall from Time to Time,
in the Queen’s Name, by Instrument under the Great Seal of
Canada, summon qualified Persons to the Senate; and,
subject to the Provisions of this Act, every Person so
summoned shall become and be a Member of the Senate and
a Senator." Note that the constitution refers only to the
Governor General, not the Prime Minister. This is a vital fact
being lost in the whole story. Mr. Alani's court challenge
focuses on whether the Prime Minister has to render advice to
the Governor General. However, this advice is a convention,
not a law or legal precedent. And as any student of Canadian
law will tell you the courts don't rule on conventions. So it
would appear that the main thrust of the court challenge will
fail. The courts may weigh in on another issue though. The
courts may well state that the Governor General must make
appointments to the Senate. This would be in line with what
the constitution actually says. The courts have already stated
that the Senate cannot be allowed to simply whither away
through non-appointment. Another ruling would cement this
principle.
So where would this leave us? If the Prime
Minister still refuses to advise the Governor
General we may witness the rarest of political
birds: the death of a convention. Governor
General David Johnston would be the one in the
position of having to create a new rule for Senate
appointments. Normally, when the Governor
General has to act outside of established convention it either
provokes, or is caused by, a constitutional crisis. In this case
the sheer unpopularity of the Senate and the slow pace of
Senate appointments gives His Excellency some breathing
room to find a solution. Here is how it would possibly go:
Minister still refuses to advise the Governor
General we may witness the rarest of political
birds: the death of a convention. Governor
General David Johnston would be the one in the
position of having to create a new rule for Senate
appointments. Normally, when the Governor
General has to act outside of established convention it either
provokes, or is caused by, a constitutional crisis. In this case
the sheer unpopularity of the Senate and the slow pace of
Senate appointments gives His Excellency some breathing
room to find a solution. Here is how it would possibly go:
The Governor General tries to convince the Prime
Minister to reconsider and give him names. He might
even mention that by long tradition he has a Right to be
Consulted. His Excellency could warn the Prime Minister that
his actions were set to trigger a constitutional crisis. And His
Excellency could encourage the Prime Minister to appoint
new senators (hopefully men & women of higher moral fibre).
In short, the Governor General would make use of Bagehot's
Three Rights of the Crown.
Minister to reconsider and give him names. He might
even mention that by long tradition he has a Right to be
Consulted. His Excellency could warn the Prime Minister that
his actions were set to trigger a constitutional crisis. And His
Excellency could encourage the Prime Minister to appoint
new senators (hopefully men & women of higher moral fibre).
In short, the Governor General would make use of Bagehot's
Three Rights of the Crown.
If Prime Minister Stephen Harper still refused to
appoint senators the Governor General may decide to
wait him out. Perhaps the next Prime Minister would be
willing to advise the Crown on this matter. This strategy has
two flaws though. 1. The party most likely to take over from
the governing Conservatives doesn't want to appoint senators
either (for that matter they don't want the Senate to exist). 2.
The Governor General can't delay on this matter forever. They
may have to do something before a more cooperative Head of
Government appears.
appoint senators the Governor General may decide to
wait him out. Perhaps the next Prime Minister would be
willing to advise the Crown on this matter. This strategy has
two flaws though. 1. The party most likely to take over from
the governing Conservatives doesn't want to appoint senators
either (for that matter they don't want the Senate to exist). 2.
The Governor General can't delay on this matter forever. They
may have to do something before a more cooperative Head of
Government appears.
With all options for maintaining the current convention
exhausted the Governor General (and it may not even be
David Johnston at this point) would have to act on their own.
They could act on their own accord in making appointments
but this is unlikely. A non-elected official appointed members
of an unelected chamber no one likes would cause too much
damage to the vice-regal office. It may even damage the
monarchy. Any occupant of the Governor General's office who
respects said office would shy away from this option. And this
is assuming the newly-appointed senators were high quality.
If they were caught misusing public funds the damage would
be magnified. There is no political 'victory' with senate
appointments. The Governor General would need a different
strategy.
exhausted the Governor General (and it may not even be
David Johnston at this point) would have to act on their own.
They could act on their own accord in making appointments
but this is unlikely. A non-elected official appointed members
of an unelected chamber no one likes would cause too much
damage to the vice-regal office. It may even damage the
monarchy. Any occupant of the Governor General's office who
respects said office would shy away from this option. And this
is assuming the newly-appointed senators were high quality.
If they were caught misusing public funds the damage would
be magnified. There is no political 'victory' with senate
appointments. The Governor General would need a different
strategy.
The Governor General could request Parliament render
advice on senate appointments. However, with two of
Canada's main parties opposing senate appointments this
may not work. If not the last foreseeable resort would be to
ask the provincial premiers for advice. There is one last option
that might be open to the Governor General but I will leave
that to another article.
His Excellency's job may well be about to become quite a bit
more interesting. All because of an upstart lawyer, a stubborn
prime minister, and a scandal-plagued senate.
Loyally Yours,
A Kisaragi Colour
advice on senate appointments. However, with two of
Canada's main parties opposing senate appointments this
may not work. If not the last foreseeable resort would be to
ask the provincial premiers for advice. There is one last option
that might be open to the Governor General but I will leave
that to another article.
His Excellency's job may well be about to become quite a bit
more interesting. All because of an upstart lawyer, a stubborn
prime minister, and a scandal-plagued senate.
Loyally Yours,
A Kisaragi Colour
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