About the Case

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.

Constitution Act, 1867, s. 32

On December 8, 2014, a Notice of Application for Judicial Review was filed in the Federal Court seeking a declaration that, among other things, the Prime Minister of Canada is constitutionally required to recommend appointments to fill the (then) 16 vacancies in the Senate of Canada. (An Amended Notice of Application was filed on May 25, 2015.)

The judicial review application followed public comments made by Prime Minister Stephen Harper on December 4, 2014 indicating that he did not intend to fill the vacancies so long as the Senate remained able to pass government legislation.

On May 21, 2015, Mr. Justice Sean Harrington of the Federal Court dismissed a motion by the government seeking to dismiss the case. A copy of the reasons for order are available here. A copy of the transcript from the hearing is available here. The government has appealed the Federal Court’s decision. On January 25, 2016, the Federal Court of Appeal dismissed Canada’s appeal of the Federal Court decision.

The application for judicial review was heard on June 22, 2016. Justice O’Reilly reserved judgment after hearing oral submissions from the parties. A copy of the complete court transcript is available here.

On October 13, 2016, the Federal Court issued judgment and reasons in the application for judicial review concerning unfilled Senate vacancies. The Court dismissed the application on grounds of mootness, without expressing any view about the underlying merits of the application or the other grounds on which the respondents sought to dismiss it. The Court also ordered that Mr. Alani pay the government’s costs of the litigation.

All materials and evidence in respect of the judicial review application and appeal have been filed in Court. Copies are available for download here. Links to media reports concerning the litigation can be found here.

* * *

In response to a number of inquiries from friends, colleagues, the media, academics and others regarding the content and status of the judicial review application, this web site was set up to provide background information and updates on the court proceeding.

Except as indicated in a court order or reasons for judgment, nothing in the materials linked from this site should be considered to be a finding of law or fact.

5 Responses to About the Case

  1. Catherine Pluard says:

    Thank you for taking on this action against the federal government. I have a question. If this lawsuit is successful, will every bill voted on and passed by the senate be subject to repeal or be considered invalid? My thought is that if the vacancies are unconstitutional, then recent Senate voting outcomes would be unconstitutional as well. Thank you for your time and thank you again for taking on the federal Conservatives.

    • admin says:

      Thanks for posting your comment and sorry for the delay in responding.

      To answer your question, I don’t think the application, if successful, would have any impact on the validity of bills passed by the Senate while vacancies existed. Indeed, throughout Canadian history it has often been the case that some vacancies have existed. What’s unprecedented, however, is a stated policy of deliberately failing to fill vacancies indefinitely. It’s that deliberate failure to advise the Governor General to fill vacancies that is alleged to be unconstitutional, not the vacancies themselves or the Senate’s competence to sit and vote on legislation in the meantime.

      Finally, I should clarify that the litigation is not against the “federal Conservatives” but rather the Prime Minister as office holder.

      Thanks again for your interest and taking the time to visit.

  2. Mark Timm says:

    I also thank you for taking the federal government to task.
    Question: If the court rules it unconstitutional to Not appoint senators and the PM
    ignores that order what do you believe would happen?

    The reason for asking this is I see a crisis coming for our constitution that will be created by the PM if he wins another majority. I just hope others can see what has been happening as I am very very tired of our elected government breaking the constitution on our behalf.

  3. Just in case Mr. Bongers checks again, I also agree with Mr. Alani’s position concerning Senate vacancies…

  4. Matt Parker says:

    Dear Mr. Brongers,

    Make that 4 (or 5, depending on your math). I would also like to see the senate vacancies filled. Not as much as I’d like to see the constitution changed to provide for a proportionally-representative elected senate, but I digress…

Leave a Reply

Your email address will not be published. Required fields are marked *