July 24, 2015 5:41 pm
Updated: August 2, 2015 4:57 pm

Is Harper’s plan for the Senate constitutional?

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Prime Minister Stephen Harper’s Senate faces a death of 105 vacancies.

In Regina on Friday, standing beside a premier staunchly opposed to the Upper Chamber, Harper announced his plan to effectively starve the Senate by imposing a moratorium on new appointments.

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Harper framed this as a way to pressure provinces to get onside with Senate reform or abolition — neither of which, a court ruled last year, the Prime Minister can act on unilaterally.

Is this plan any more constitutional?

“I don’t think so,” said University of Waterloo political science professor Emmett Macfarlane, who advised Liberal leader Justin Trudeau on the constitutionality of his own Senate policy (and said last January he’d be happy to do the same for any party).

“The Supreme Court made it quite clear last year that the Prime Minister cannot take unilateral action to change the essential features of the Senate.

“And eventually, a buildup of vacancies as the result of a policy of non-appointment is going to impair the Senate’s functions.”

There are a couple of fronts on which Harper’s Senate vacancy policy could be unconstitutional.

WATCH: Prime Minister Stephen Harper said Friday he won’t make any more appointments to the Senate. There are 22 vacancies now, and as senators retire the Upper Chamber will slowly peter out unless the provinces agree to reform it or abolish it. Vassy Kapelos reports.

One is in the text, stating the “Governor General shall appoint” new Senators to fill vacancies. As a rule, the Governor-General makes Senate appointments in accordance with the Prime Minister’s recommendation.

While it isn’t clear whether Governor-General David Johnston would be able to make appointments himself in the absence of any recommendations from Harper, it would be highly problematic for a representative of the Crown to do so.

The other, more thorny — and arguably more significant — problem has to do with last year’s court ruling: If Harper isn’t allowed to unilaterally alter the Senate, doesn’t progressively starving it of new Senators count as a unilateral alteration?

“I think this directly contravenes what the court said,” Macfarlane said.

Even if existing vacancies aren’t affecting the Senate’s ability to function, as the empty seats multiply the Upper Chamber will have trouble simply filling the committees that are supposed to be reviewing legislation.

Even Harper noted during his press conference Friday that he “can’t formalize non-appointment.” A Conservative Party spokesperson couldn’t immediately say what the difference is between formalized non-appointment and a policy of not appointing Senators.

“This is almost constitutional sabotage,” Macfarlane said.

“It’s kind of sucking your thumb and sulking because you didn’t get your way.”

Right now there are 22 vacancies in the Senate.

And there’s already a court case challenging Harper’s Senate vacancies: Late last year Vancouver lawyer Aziz Alani filed an application for judicial review of the growing number of empty seats in the Senate.

The federal government tried to have that case dismissed and so far has failed.

“I think the Prime Minister just handed that case a huge gift,” Macfarlane said.

“Now we have an official statement. … This is official policy” — not just a PM dawdling when it comes to filling Senate vacancies.

But even if a court agrees this plan for perpetual Senate vacancies is unconstitutional, it isn’t clear whether a court could order the Prime Minister to make appointments.

“If the PM then ignored a statement by the Supreme Court saying there’s a constitutional obligation, then we would be in the midst of a constitutional crisis,” Macfarlane said.

But as impassioned as Macfarlane gets on the topic of Senate reform and the constitution, he knows most Canadians don’t get quite as fired up.

And that lack of populist engagement over the intricacies of Canada’s constitution could play to the Prime Minister’s advantage, Macfarlane said.

“He’s capitalizing on hugely negative public sentiment toward the Senate, largely as a response to the expense scandal,” he said. But “Senate expenses have nothing to do with whether the Senate should exist or not.”

“There’s a real debate to be had about whether we want the Senate, whether we want to reform the Senate,” Macfarlane said. But letting the institution wither into oblivion — democratically relevant or not — avoids that debate, he said.

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