Saturday, July 25, 2015

On final excuses

I'll offer one more post arising out of the flurry of discussion about the Senate - and particularly the timing of an announcement which would seem to have been equally easily made during the campaign if it was intended solely for platform purposes.

Let's remember that the last time Stephen Harper broke his promise not to appoint unelected Senators (give or take a Michael Fortier), his rationale had nothing at all to do with the passage of legislation. Instead, it arose in response to the prospect of a coalition government winning power - and Harper's explanation was that if any party was going to appoint cronies and bagmen to publicly-funded sinecures, it would be his own.

In that respect, Campbell Clark's discussion of the difference between Harper's new announcement and the position the federal government has taken in Aniz Alani's lawsuit seeking to require the appointment of Senators might be of particular interest:
In that case at the Federal Court, the government has been filing materials to back up an argument that Mr. Harper is delaying appointments, not refusing them. They include an affidavit from McGill political science professor Christopher Manfredi, who declared that there’s no constitutional convention that dictates how much time PMs have to appoint senators, and they can take their time. But refusing to appoint senators?

“Certainly, at some stage, senators have to be appointed,” Federal Court Justice Sean Harrington wrote in May, when he rejected the government’s motion to dismiss Mr. Alani’s case. He noted that if there were less than 15 senators, the required number for quorum in the chamber, Parliament could not function. (Mr. Alani argues the Constitution requires Mr. Harper to appoint senators, and refusing to do so defeats constitutional provisions guaranteeing levels of representation to provinces.)

He also wrote this: “I know of no law which provides that one may not do what one is otherwise obliged to do simply because it would be embarrassing.”

But government lawyers told the court, in a letter dated June 15, that there was never any decision made by the Prime Minister to leave Senate seats vacant. The letter was sent as part of the court process: Mr. Alani had asked for copies of all the materials the PM used to make the decision to leave Senate seats vacant, and government lawyer Jan Brongers replied that there were no materials, because there was no such decision.
Harper's new announcement surely changes the factual landscape underlying Alani's application. And it's worth wondering whether Harper's plan might open the door to his being provided with an excuse to make appointments in advance of the election.

To be clear, it's questionable whether a decision in the first instance could be made by October even if both parties did everything in their power to speed the process along - particularly since at last notice, the Government was appealing the denial of its own motion to strike Alani's application. And any appeals on the merits would carry on well past election day if either side chose to pursue them.

But if Harper were looking for a declaration that he should serve up one more set of Con patronage appointments before the election (and a trial court decision could well be excuse enough for political purposes), yesterday's announcement would seem to set the wheels in motion toward having a court offer exactly that. And it will be worth watching whether the government's attitude toward the legal proceedings changes in combination with that choice.

Update: Stephanie Levitz offers the Cons' explanation for the timing. But it's worth noting that it contains at least as much spin as substance given the implausibility that the existence and functioning of a chamber of the federal Parliament can be labeled with a straight face to "really (rest) with the provinces".

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