Canadians hear all about cold Camembert and broken crackers, Nigel Wright’s $90,000 gift to Mike Duffy, and NDP satellite office expenses, but we rarely hear about life in the trenches: the expensive and unnecessary court battles our government fights whenever it is accused of doing something wrong. Recently, a B.C. lawyer named Aniz Alani noticed that there are 20 vacancies in Canada’s 105-seat Senate. Alani reasoned that these vacancies leave certain regions of the country underrepresented and leave the senate less able to do its job. He asked the Federal Court to compel Stephen Harper to appoint Senators to fill the vacancies. Harper’s government recently lost its bid to have the case dismissed.
The basis for the request for dismissal was the government’s insistence that the Governor General, not the Prime Minister, is responsible for appointing Senators, and that it is only by convention that the Prime Minister advises the Governor General on this matter. The Governor General’s office disagrees, but that obviously isn’t important. Government lawyers also argued that the case was frivolous and had no chance of success. Apparently, these were bad arguments because the case survived. The good news (?) is that this court battle will continue at our expense.
Although he rejected several government arguments, Federal Court Justice Sean Harrington accepted the government’s position that there is a political aspect to Senate appointments. It was unclear why we needed a Justice of the Federal Court to affirm something so obviously true, but politicizing Senate appointments is a convention, not a law, so perhaps it made sense for him to weigh in on the theme of the day. Further, Harrington acknowledged that the Senate and particular Senators may be a “source of embarrassment to the government.” It’s hard to see how that might impact the government’s judgment or inform its position in this case, though.
To his credit, Stephen Harper has an excellent track record when appointing Senators. In Mike Duffy, Patrick Brazeau, and Pamela Wallin, he has appointed three of the most famous Senators in Canadian history. He also appointed the slightly less famous Irving Gerstein, who allegedly interfered with the Senate audit at the height of the expense scandal. In light of all this, is it possible that Harper is avoiding appointing new Senators because he is afraid of bringing in another round of bad apples? Does this have anything to do with the law, or everything to do with the Prime Minister’s public image?
Yes, Harper has a record and an embarrassing one at that. He has proven untrustworthy with Senate appointments. However, as Justice Harrington said, there is no law that allows Harper to skip out on appointing Senators “simply because it would be embarrassing.” So much truth in so few words: if the motion to dismiss was this humiliating, it might be worth watching as this case unfolds.