Docket: T-2506-14
Citation:
2015 FC 649
Ottawa, Ontario, May 21, 2015
PRESENT: The
Honourable Mr. Justice Harrington
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BETWEEN:
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ANIZ ALANI
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Applicant
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and
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THE PRIME
MINISTER OF CANADA AND
THE GOVERNOR
GENERAL OF CANADA
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Respondents
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ORDER AND REASONS
[1]
Last December, Prime Minister Harper is said to
have publicly communicated his decision not to advise the Governor General to
fill existing vacancies in the Senate. Mr. Alani, a Vancouver lawyer, considers
this “decision” illegal. He has applied for judicial review thereof. He seeks
various declarations, the main one being that the Prime Minister must call upon
the Governor General to appoint his nominees to the Senate within a reasonable
time after a vacancy occurs. He does not ask that the Prime Minister be so
ordered.
[2]
The Deputy Attorney General, on behalf of the
Prime Minister and the Governor General, has moved this Court for an order that
the application for judicial review be struck at the outset, before it is heard
on the merits. He submits it is plain and obvious that the application is
bereft of any chance of success.
[3]
For the reasons that follow, I am not persuaded,
on the record presently before me, that it is plain and obvious that Mr. Alani
has no chance of success. No matter the generality of the language which
follows, it is always cushioned by this “plain and obvious” concept.
[4]
The respondents’ motion references s. 221(1)(a)
of the Federal Courts Rules which provides:
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221. (1) On
motion, the Court may, at any time, order that a pleading, or anything
contained therein, be struck out, with or without leave to amend, on the
ground that it
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221. (1) À
tout moment, la Cour peut, sur requête, ordonner la radiation de tout ou
partie d’un acte de procédure, avec ou sans autorisation de le modifier, au
motif, selon le cas :
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(a)
discloses no reasonable cause of action or defence, as the case may be,
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a) qu’il ne révèle aucune cause d’action ou
de défense valable;
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[5]
No evidence is to be heard on such a motion. The
facts pleaded are taken to be true. The burden falls upon the respondents to
persuade me that even if the facts are true, no cause of action is made out.
[6]
The leading case on point is the decision in Hunt
v Carey Canada Inc, [1990] 2 S.C.R. 959. The Supreme Court held that the test
to be applied was whether it was “plain and obvious” that the pleadings
disclosed no reasonable claim. “[I]f there is a chance
that the plaintiff might succeed, then the plaintiff should not be “driven from
the judgment seat”.” It is certainly not for the Court, at this stage,
to weigh the applicant’s chances of success. See also Attorney General of
Canada v Inuit Tapirisat et al, [1980] 2 S.C.R. 735 and Operation Dismantle
v The Queen, [1985] 1 S.C.R. 441.
[7]
Also relevant is Dyson v Attorney-General,
[1911] 1 KB 410 at 419, in which Fletcher Moulton LJ said:
Differences of law, just as differences of
fact, are normally to be decided by trial after hearing in Court, and not to be
refused a hearing in Court by an order of the judge in chambers.
I.
Issues
[8]
The following issues arise:
a.
Should the motion to strike be heard now, or at
the same time as the application is heard on the merits?
b.
Does Mr. Alani have standing?
c.
Was there a decision to be judicially reviewed?
d.
Is there a constitutional convention by which
the timing of Senate appointments is left to the Prime Minister’s discretion?
e.
If there is such a convention, is it valid if
contrary to an imperative requirement of the constitution?
f.
Is this a question of statutory interpretation,
no more, no less?
g.
Is the matter justiciable or better left to the
political arena?
h.
If justiciable, does the Federal Court have
jurisdiction?
i.
Costs.
A.
Should the motion have been postponed?
[9]
Applications to this Court, by way of judicial
review or otherwise, are supposed to be summary in nature (Federal Courts
Act, s 18.4). Interlocutory motions interrupt the flow of proceedings.
Nevertheless, there are circumstances, whether under Federal Courts Rule
221 or otherwise, in which the Court in control of its own process will not
permit an application to run its course (David Bull Laboratories (Canada)
Inc v Pharmacia Inc, [1995] 1 FC 588 (CA)). More recently, Mr. Justice
Stratas speaking for the Court of Appeal referred to David Bull Laboratories
and said “[t]here must be a “show stopper” or a
“knockout punch” – an obvious fatal flaw striking at the root of this Court’s
power to entertain the application” (Canada (National Revenue) v JP
Morgan Asset Management (Canada) Inc, 2013 FCA 250 at para 47).
[10]
This application was put under case management
and a case management conference has already been held. Serious issues were raised
which is why, in my discretion, I decided to hear the motion to strike now.
B.
Does Mr. Alani have standing?
[11]
The respondents have not challenged Mr. Alani’s
standing as such, at least not at this stage. Section 18.1 of the Federal
Courts Act provides that: “An application for
judicial review may be made by the Attorney General of Canada or by anyone
directly affected by the matter in respect of which relief is sought.”
Is Mr. Alani directly affected? In any event, as this is a matter which falls
within my discretion, I grant him standing on a public interest basis to oppose
the motion to have his application struck (Thorson v Attorney General of
Canada, [1975] 1 S.C.R. 138).
[12]
The respondents submit that Mr. Alani is really
referring a point of law to this Court for decision. Only federal boards,
commissions and tribunals, and the Attorney General of Canada may refer a
question of law to this Court (s. 18.3 of the Federal Courts Act). On
the other hand, it is open to the Court to grant declaratory relief in
accordance with s. 18 of the Act. The application is framed as a judicial
review of a decision, not as a reference.
C.
Is there a decision to be judicially reviewed?
[13]
The language of this decision, and the
circumstances in which it was allegedly made, are not set out in the pleadings.
Was this a statement made in the House of Commons? Or was it a statement made
during a media scrum? An off-the-cuff remark may not be a decision at all.
Nevertheless, I am required to assume, at this stage, that a decision was made.
[14]
For their part, the respondents do not deny at
this stage that a decision was made. Perhaps, otherwise, we would be facing the
thorny issue as to whether mandamus to fulfill a public duty lies.
[15]
As mentioned by Mr. Justice Stratas at paragraph
40 of JP Morgan, above, a “concise”
statement of the grounds on which judicial review is sought must include the
material facts necessary to establish that the Court can and should grant the
relief sought. However, it does not include the evidence. As judge, I certainly
would have preferred better particulars.
D.
Is there a constitutional convention?
[16]
All agree that a constitutional convention has
developed whereby the Governor General will only fill vacancies in the Senate
on the advice of the Prime Minister (Reference re Senate Reform, [2014]
1 SCR 704 at para 50). The Prime Minister’s role may have developed and be
evidenced by Minutes of Council going back to 1896. The parties disagree as to
whether these Minutes of Council simply constitute recognition of a convention,
or whether they show that the Prime Minister’s advice is provided pursuant to
Crown prerogative.
[17]
However, no constitutional convention has been
brought to my attention as to the timing of the Prime Minister’s
recommendations. Certainly, at some stage, senators have to be appointed. If
there were to be no quorum, (the quorum being fifteen), Parliament could not
function as it is composed of both the House of Commons and the Senate.
E.
Is the Convention Valid?
[18]
The convention is that the Governor General will
not do something except on the recommendation of the Prime Minister. In the
past, there were conventions that Parliament in Westminster would not amend the
British North America Act except on Canada’s request. These are
conventions that provide that something will not be done except in certain
circumstances. However, if the Constitution requires something to be done
promptly, i.e. that Senate vacancies be filled, can the law be flaunted
by convention? This goes to the merits of the application and cannot be
answered at this time as the full scope of the convention has not been laid out
before me.
F.
Is this a question of statutory interpretation?
[19]
Mr. Alani submits that this is a straightforward
case of statutory interpretation. For instance, it had to go all the way to the
Judicial Committee of the Privy Council before it was decided that women were
“persons” eligible to be appointed to the Senate (Edwards v Attorney–General
for Canada, [1930] AC 124).
[20]
Mr. Alani’s case is based upon section 32 of the
Constitution Act, 1867 which provides:
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32. 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.
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32. Quand un
siège deviendra vacant au Sénat par démission, décès ou toute autre cause, le
gouverneur-général remplira la vacance en adressant un mandat à quelque
personne capable et ayant les qualifications voulues.
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When shall a vacancy be filled? When
it happens, not at the pleasure of the Prime Minister.
[21]
Sections 21 and following of the same Act
provide that the Senate shall consist of 105 members. Quebec and Ontario shall
each be represented by 24, 10 from Nova Scotia, 10 from New Brunswick, 4 from
Prince Edward Island, 6 from Manitoba, 6 from British Columbia, 6 from
Saskatchewan, 6 from Alberta and 6 from Newfoundland and Labrador. The Yukon
Territory, the Northwest Territories and Nunavut shall be entitled to be
represented by one senator each. As noted above, the quorum is 15.
[22]
Mr. Alani’s other point is that the Senate was
not intended to serve as a rest home for old political war horses. Apart from
being a sober second chamber, it provides for regional representation. As of 20
March 2015, only 87 of the 105 seats in the Senate were filled, with no one
having been appointed since 25 March 2013. Seven provinces are currently
shortchanged, with Manitoba only having three of its six allocated seats.
[23]
Again, the timing question cannot be answered at
this time as we do not know the actual scope of the constitutional convention.
The respondents must provide proof thereof as indeed stated at page 888 of
Re: Resolution to Amend the Constitution, [1981] 1 S.C.R. 753 (the First
Reference):
2. Requirements for establishing
a convention
The requirements for establishing a
convention bear some resemblance with those which apply to customary law.
Precedents and usage are necessary but do not suffice. They must be normative.
We adopt the following passage of Sir W. Ivor Jennings, The Law and the
Constitution (5th ed., 1959), at p. 136:
We have to ask ourselves three
questions: first, what are the precedents; secondly, did the actors in the
precedents believe that they were bound by a rule; and thirdly, is there a
reason for the rule? A single precedent with a good reason may be enough to
establish the rule. A whole string of precedents without such a reason will be
of no avail, unless it is perfectly certain that the persons concerned regarded
them as bound by it.
[24]
The parties will have an opportunity to provide
proof of the existence and scope of any relevant convention at the hearing of
the application on the merits.
G.
Is the matter justiciable?
[25]
The respondents submit there is no justiciable
issue because the Prime Minister advises on Senate appointments by
constitutional convention (true); constitutional conventions are not enforced
by the courts (true); constitutional conventions do not become rules of law
unless adopted by statute (true); and advice on Senate appointments is not given
pursuant to the Crown prerogative (there is some debate on this point). It is
further submitted that this Court, as a statutory court created by virtue of s.
101 of the Constitution Act, 1867, only has jurisdiction conferred by or
under an act of Parliament or Crown prerogative (s. 2 of the Federal Courts
Act). Consequently, even if the Prime Minister’s advice in respect of Senate
appointments were justiciable, this Court lacks jurisdiction. Since a
constitutional convention does not arise from statute and is not a prerogative
of the Crown, the Prime Minister is not a federal board, commission or other
tribunal when performing this advice-giving function.
[26]
Courts are certainly called upon to determine
whether or not a convention exists. In addition to the First Reference,
the Supreme Court again referred to constitutional conventions in Re:
Objection by Quebec to a Resolution to amend the Constitution, [1982] 2 SCR
793 (the Quebec Veto Reference). More recently, this Court was called
upon to review the Prime Minister’s decision advising the Governor General to
dissolve Parliament and to set an election date, in light of the Canada
Elections Act having been amended to provide fixed election dates (Conacher
v Canada (Prime Minister), 2009 FC 920, [2010] 3 FCR 411). Mr. Justice
Shore was not satisfied that a new convention existed that limited the ability
of the Prime Minister to advise the Governor General. He was upheld by the
Federal Court of Appeal from the bench (2010 FCA 131) and leave to appeal to
the Supreme Court was refused ([2010] SCCA No 315).
[27]
Consequently, it is arguable at this stage that
we are only left with the interpretation of statute, albeit a very important
one. In the circumstances, it is not necessary for this Court to consider
constitutional conventions in detail. Suffice it to say that both the majority
and the minority in the First Reference and the Court in the Quebec Veto
Reference adopted the definition given by Chief Justice Freedman in the Reference
re: Amendment of Constitution of Canada, [1981] MJ No 95 (CA) (the Manitoba
Reference), as quoted in the Quebec Veto Reference as follows
at page 802:
The majority opinion as well as the
dissenting opinion both approved, at pp. 852 and 883, the definition of a
convention given by Freedman C.J.M. in the Manitoba Reference and quoted at p.
883 of the First Reference:
What is a constitutional convention?
There is a fairly lengthy literature on the subject. Although there may be
shades of difference among the constitutional lawyers, political scientists,
and Judges who have contributed to that literature, the essential features of a
convention may be set forth with some degree of confidence. Thus there is
general agreement that a convention occupies a position somewhere in between a
usage or custom on the one hand and a constitutional law on the other. There is
general agreement that if one sought to fix that position with greater
precision he would place convention nearer to law than to usage or custom.
There is also general agreement that “a convention is a rule which is regarded
as obligatory by the officials to whom it applies”. Hogg, Constitutional Law
of Canada (1977), p. 9. There is, if not general agreement, at least
weighty authority, that the sanction for breach of a convention will be
political rather than legal.
[28]
If there is a valid constitutional convention,
it is clear that the Court will not enforce it. The respondents submit that the
Court should not even make a declaration on the point, because failure to
adhere to a declaration may, in some circumstances, lead to contempt of Court
and, thereby, indirect enforcement of a convention. They base themselves on Assiniboine
v Meeches, 2013 FCA 114.
[29]
Assiniboine v Meeches was a decision of Mr. Justice Mainville of the Federal Court of Appeal,
sitting alone as duty judge. The appellants were seeking to stay a judgment of
the Federal Court which declared that an Indian band election appeal committee
had made a final and binding decision requiring new elections. At paragraphs 14
to 15 he referred to the decision of Mr. Justice MacGuigan in LeBar v Canada,
[1989] 1 FC 603 (CA) and to the decision of the Supreme Court in Doucet-Boudreau
v Nova Scotia (Minister of Education), 2003 SCC 62. It was said in the
latter that in appropriate cases, if public bodies or officials do not comply
with a declaratory order, contempt proceedings could lie against the Crown.
[30]
However, those circumstances were not spelled
out. The statement in respect of contempt was in the majority reasons, written
by Mr. Justice Iacobucci and Madam Justice Arbour, in which they disagreed with
Mr. Justice Lebel and Madam Justice Deschamps, dissenting, that the trial
judge’s order that the court supervise the implementation of its decision was
void.
[31]
If we took this point to its logical extreme,
there would be no scope for a declaration that a constitutional convention
requires a government official to do something.
[32]
LeBar was an
appeal from a judgment of the Federal Court Trial Division which declared that
Mr. LeBar was entitled to have been released from prison earlier than when he
in fact was released.
[33]
Mr. Justice MacGuigan set out the principles of
declarations in great detail. For these purposes it is sufficient to note that
at pages 610-611, he said:
… [A] declaration is a peculiarly apt
instrument in dealing with bodies “invested with public responsibilities” because it can be assumed that they will, without coercion, comply with the
law as stated by the courts. Hence the inability of a declaration to sustain,
without more, an execution process should not be seen as an inadequacy of
declaratory proceedings vis-à-vis the Government. Any power to enforce such a
judgment against the Government would be superfluity.
In my opinion, the necessity for the
Government and its officials to obey the law is the fundamental aspect of the
principle of the rule of law, which is now enshrined in our Constitution by the
preamble to the Canadian Charter of Rights and Freedoms…
…
Elusive as it is as a concept, the rule of
law must in all events mean “the law is supreme” and that officials of the
Government have no option to disobey it. It would be unthinkable, under the
rule of law, to assume that a process of enforcement is required to ensure that
the Government and its officials will faithfully discharge their obligations
under the law. That the Government must and will obey the law is a first
principle of our Constitution.
[34]
It is to be emphasized that Mr. Alani only seeks
a declaration, and does not ask that it be enforced.
[35]
Certainly it is premature to say now that this
matter is not justiciable. If this is merely a matter of interpreting a
statute, and it is not plain and obvious that it is not, then certainly the
matter is justiciable.
[36]
Without a doubt there is a political aspect to
Senate appointments. From time to time the Senate, or some Senators, may be a
source of embarrassment to the Government, to the House of Commons as a whole,
and indeed, to many Canadians. However, 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. The Supreme Court made it perfectly clear in the Reference re Senate
Reform that significant changes to the Senate, including its abolishment,
require a formal constitutional amendment.
H.
Does this Court have jurisdiction?
[37]
I think some confusion arises between the
concepts of justiciability and jurisdiction. If there is a valid constitutional
convention the courts will not enforce it, but may make declarations in respect
of its content. However, the jurisdiction to hear this application is quite a
different matter. In accordance with sections 2 and 18 and following of the Federal
Courts Act, this Court may judicially review the decisions of federal
boards, commissions or other tribunals, which are defined as any body or person
having, exercising or purporting to exercise jurisdiction or powers “conferred by or under an Act of Parliament or by or under an
order made pursuant to a prerogative of the Crown…”. Many decisions of
Ministers of the Crown are subject to judicial review (Irving Shipbuilding
Inc v Canada (Attorney General), [2010] 2 FCR 488 (CA)). Current thought is
that the Constitution, although originally enacted by the United Kingdom, is, following
the patriation of our constitution, a law of Canada (Canadian Transit
Company v Windsor (Corporation of the City), 2015 FCA 88 at paras 47-49).
[38]
The respondents submit that constitutional
conventions do not form part of the Crown prerogative, and therefore are not
subject to judicial review. However, at this stage it cannot be said with any
certainty whether or not the decision was grounded on a valid constitutional
convention. Furthermore, there are some who would argue that constitutional
conventions are akin to the Crown prerogative so that Dyson, above,
would call for a hearing on the merits.
[39]
In the alternative, Mr. Alani states that this Court
has jurisdiction by virtue of section 17 of the Federal Courts Act as
the Federal Court has concurrent original jurisdiction in all cases in which
relief is claimed against the Crown.
[40]
There are not enough established facts to
justify going down that road at this time.
I.
Costs
[41]
Both sides sought costs. The respondents
seek an order for $1,000.00 all inclusive, which is clearly much less than any
amount which might be set under the tariff. Mr. Alani seeks costs in the same
amount in any event of the cause on the basis that it was “plain and obvious” that this motion to strike at this stage
was “doomed to failure”. If an award is not granted now he reserves his right
to seek a higher amount. He also seeks a public interest immunity from costs. I
think it better to simply order that costs be in the cause.
II.
Amendments to the Notice of Application
[42]
In his reply to the respondents’ motion to
strike, Mr. Alani proposed certain amendments should the motion fail, and other
amendments should it succeed, as in such instances the Court may strike with
leave to amend. These latter proposed amendments need not be considered as the
motion is dismissed.
[43]
A good part of the proposed amendments simply
reflect a shuffling of parts of the application to the grounds therefore, and
pose no problem.
[44]
He also proposes that the Queen’s Privy Council
for Canada be added as a respondent in light of the cabinet minutes referred to
above. This is simply meant to cover the bases, and I see no issue.
[45]
However, he wishes to delete his reference to
the Prime Minister making a decision. He rather seeks a declaration with
respect to the Prime Minister’s failure, refusal or unreasonable delay, or
alternatively the Queen’s Privy Council acting on his recommendation to advise
the Governor General to fill existing vacancies in the Senate. This is not
acceptable.
[46]
The whole basis on which this application has
proceeded is that it is a judicial review of a decision. If those assertions are
deleted, the application would look like a reference. Only federal boards and
tribunals and the Attorney General of Canada may refer matters to the Court.
Mr. Alani cannot.
[47]
Thus the opening of the amended application
shall read as it did in the original Notice of Application:
THIS IS AN APPLICATION FOR JUDICIAL REVIEW
in respect of the decision of the Prime Minister, as communicated publicly on
December 4, 2014, not to advise the Governor General to summon fit and
qualified Persons to fill existing Vacancies in the Senate.
THE APPLICANT makes application for:
1) A declaration that:
a) the Prime Minister of Canada must advise the Governor General
to summon a qualified Person to the Senate within a reasonable time after a
Vacancy happens in the Senate.
[48]
The rest of the application and the grounds
therefore may be amended as requested save and except for the beginning of number
12 of the Grounds of the amended application, which will read: “The Prime
Minister’s decision not to recommend…”
[49]
This amended application is to be formally
served and filed forthwith. Thereafter the normal delays set out in Rule 304
and following of the Federal Courts Rules shall be followed.
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