Prime Minister Stephen Harper announced a “moratorium” on appointing new Senators last Friday, as part of an effort to spur the provinces to come up with proposals on Senate reform or adopt a policy of Senate abolition.
This announcement follows the 2014 reference from the Supreme Court of Canada which ruled that Senate abolition requires the unanimous consent of the Senate, the House of Commons, and all the provinces.
The Prime Minister has acknowledged that he cannot “formalize a non-appointment”, as to simply stop appointing Senators until there are none left would amount to an in-fact amendment of the constitution.
But for how long can the Prime Minister continue to not appoint Senators? Furthermore, what will happen to put a stop to it? These are unprecedented and fascinating constitutional questions.
The answer lies somewhere in section 32 of the Constitution Act 1867, which states that “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”.
Can the Supreme Court somehow force the Prime Minister to appoint Senators? In my view it is more likely to be considered the Constitutional duty of the Governor General to appoint Senators if the Prime Minister refuses to do so.
Nothing will happen before the 2015 federal election of course, but Senate reform is shaping up to be an unavoidable issue for the next Parliament.