Docket: T-2506-14
Citation:
2016 FC 1139
Ottawa, Ontario, October 13, 2016
PRESENT: The
Honourable Mr. Justice O'Reilly
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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,
THE GOVERNOR
GENERAL OF CANADA AND THE QUEEN'S PRIVY COUNCIL
FOR CANADA
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Respondents
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JUDGMENT AND REASONS
I.
Overview
[1]
Mr Aniz Alani challenges a 2014 decision of then
Prime Minister, the Right Honourable Stephen Harper, not to fill vacancies in
the Senate of Canada. Mr Alani seeks a declaration that former Prime Minister
Harper had a constitutional duty to advise the Governor General on Senate
appointments within a reasonable time after a vacancy arose. Mr Harper’s
position, says Mr Alani, failed to respect a binding constitutional convention.
[2]
The respondents, the Prime Minister, the
Governor General, and the Privy Council, raise numerous arguments against Mr
Alani’s position. First and foremost, the respondents submit that this matter
is moot given that the current Prime Minister, the Right Honourable Justin Trudeau,
has instated a new process for appointing Senators, has actually made a number
of appointments to the Senate, and has committed to making more appointments in
the near future. Therefore, according to the respondents, there is no longer
any moratorium on Senate appointments, and no need to rule on the merits of Mr
Alani’s arguments. The respondents also maintain that Mr Alani’s application
for judicial review is not justiciable as it relates to a purely political
question, that the Federal Court has no jurisdiction over the matter that Mr
Alani does not have standing, and that the alleged constitutional convention on
which Mr Alani relies does not exist. They ask me to dismiss Mr Alani’s
application.
[3]
I agree with the respondents: this matter is
moot. Therefore, I must dismiss Mr Alani’s application for judicial review.
[4]
The sole issue is whether Mr Alani’s application
for judicial review is moot. I express no view about the underlying merits of
the application or the other grounds on which the respondents sought to dismiss
it.
II.
Background
[5]
In late 2014, Mr Alani read an article in the
Toronto Star in which former Prime Minister Harper was reported to have said, “I don’t think I’m getting a lot of calls from Canadians to
name more senators right about now” (December 4, 2014). A few days
later, Mr Alani filed a notice of application seeking judicial review of Mr
Harper’s decision not to advise the Governor General to summon fit and
qualified persons to fill Senate vacancies (the Governor General’s authority is
set out in the Constitution Act, 1867, s 32 – see Annex). In July
2015, Mr Harper confirmed that there was a moratorium on Senate appointments, although
Mr Alani relied on the 2014 statement for his application.
[6]
However, Mr Alani later sought to amend his
application to remove any reference to Mr Harper’s 2014 statement. Justice Sean
Harrington allowed Mr Alani to make some amendments to his application, but did
not allow him to delete his reliance on the 2014 statement. Justice Harrington
observed that removing any mention of that statement from Mr Alani’s
application would convert the proceeding from an application for judicial
review to an impermissible private legal reference. Justice Harrington also
dismissed the respondents’ motion to strike Mr Alani’s application (Alani v
Canada (Prime Minister), 2015 FC 649). The Federal Court of Appeal later dismissed
the respondents’ appeal on the motion to strike (Canada (Prime Minister) v
Alani, 2016 FCA 22).
[7]
As the 2015 federal election neared, Mr Alani
sought to expedite the hearing of his application. On May 29, 2015, in support
of his desire to set down an early hearing, Mr Alani wrote to the Court. In his
letter, he recognized that “if a change of government
results in a change in the policy of the government of the day in respect of
Senate appointments, . . . the underlying issues raised in the application
concerning the constitutional requirement to advise the Governor General to
fill Senate vacancies may reasonably be expected to become moot”. Soon
thereafter, Mr Alani formally requested an expedited hearing. In his
submissions, Mr Alani again conceded that the election could render his
application moot. Nevertheless, Justice Jocelyne Gagné dismissed Mr Alani’s
motion to expedite (Alani v Canada (Prime Minister), 2015 FC 859).
[8]
On October 19, 2015, Mr Justin Trudeau became
Prime Minister. In early December, the Minister of Democratic Institutions, the
Honourable Maryam Monsef, announced the creation of an Independent Advisory
Board for Senate Appointments to provide advice to the Prime Minister. In
addition, Minister Monsef declared that five appointments would be made in
early 2016, and that the remaining vacancies would be filled later in 2016.
Indeed, in the spring of 2016, the Governor General – on the advice of the
Prime Minister, who had received recommendations from the Advisory Board –
appointed seven new Senators.
[9]
On June 22, 2016, I heard the parties’
submissions on the issue of mootness, as well as the merits of Mr Alani’s
application. I reserved judgment.
A.
Is Mr Alani’s application for judicial review
moot?
[10]
Despite his earlier concessions that the results
of the 2015 election could render his application moot, Mr Alani argues that
the underlying issue in this proceeding remains unresolved: the fact that the
Prime Minister has made appointments and has committed to filling remaining
vacancies does not render his application moot. The question remains, he says,
whether a constitutional convention requires the Prime Minister to fill
vacancies on a timely basis.
[11]
I disagree. Given the basis of Mr Alani’s
application – the former Prime Minister’s decision not to make Senate
appointments – current circumstances have rendered it moot, and there is no
basis for exercising this Court’s discretion to decide the moot question.
[12]
The parties agree that the issue of mootness
must be decided according to the framework set out in Borowski v Canada
(Attorney General), [1989] 1 S.C.R. 342. The first question is whether “the required tangible and concrete dispute has disappeared
and the issues have become academic”. If so, the second question is
whether the court should exercise its discretion to decide the merits of the
case (at p 353).
[13]
In my view, the first question should be
answered affirmatively; the essence of the dispute has vanished.
[14]
Mr Alani’s application for judicial review is
based on a moratorium imposed by Mr Harper. While Mr Alani later tried to
broaden his application, Justice Harrington denied his request. In effect, Mr
Alani makes the same appeal here: his application does not relate to “a specific statement made by a particular Prime Minister or
the precise intentions of a Prime Minister at an isolated moment in time”.
Rather, according to Mr Alani, his application raises a general question about
the existence of a constitutional obligation on the Prime Minister to advise
the Governor General on Senate appointments within a reasonable time.
[15]
I cannot agree with Mr Alani’s submissions on
this point. First, Justice Harrington already denied Mr Alani’s request to frame
his application as a general constitutional inquiry. Subject to a successful
appeal of that order, it binds both Mr Alani and me. Second, he cannot broaden
the scope of his application simply by way of legal representations before me.
The notice of application provides the foundation for Mr Alani’s case, and that
notice refers specifically to Mr Harper’s 2014 statement.
[16]
I agree with Mr Alani that his notice of
application should be read “holistically and
practically” (Canada (National Revenue) v JP Morgan Asset Management
(Canada) Inc, 2013 FCA 250 at para 50). However, that generosity of
interpretation cannot amount to amending the very basis of the application. Mr
Alani’s application was inspired by a moratorium on Senate appointments; he
specifically relied on the moratorium in his notice of application, and his
request to broaden its scope was denied. Accordingly, the case before me is
inextricably connected to the moratorium on Senate appointments announced by
the former Prime Minister. That moratorium is clearly over. There is no live
controversy remaining between the parties. Mr Alani’s case is moot.
[17]
Mr Alani argues that if I should find his
application moot, I should exercise my discretion to decide it anyway because:
•
The parties have compiled a complete record on
the issues raised in his application, so it would be a more efficient use of
judicial resources to decide them now rather than wait for a fresh application
sometime in the future;
•
There remains a question whether the Prime
Minister considers himself bound to make timely appointments to the Senate;
•
The application raises an important question
that might otherwise evade judicial review; and
•
There is a social cost to leaving undecided an
important constitutional question.
[18]
Again, I disagree with Mr Alani’s submissions.
In keeping with Borowski, the discretion to decide a moot case should be
exercised only where an adversarial context remains, expending scarce judicial
resources is not a major concern, and the court is not being asked to step
outside its judicial role. These factors do not weigh in Mr Alani’s favour.
[19]
Without commenting on Mr Alani’s standing, I
note that there does not appear to be a genuine adversarial context here. Mr
Alani brings his application essentially as a concerned and interested citizen.
He has no particular or personal stake in the outcome.
[20]
With respect to judicial resources, significant
time and effort would be required to rule definitively on Mr Alani’s
application. True, the parties have already compiled the necessary written
materials and the Court has received the parties’ oral submissions. However, a
full judgment on the merits would likely require weeks of analysis and writing
that could be devoted instead to cases where the parties are engaged in a
concrete and significant dispute that demands timely resolution. Further, I do
not see the constitutional issue at stake here as being evasive of judicial
review. If a Senate vacancy remained open for a significant period, the Prime
Minister’s failure to act could be the subject of an application for judicial
review. In addition, it is hard to see a significant social cost that the
Canadian public would bear if the question Mr Alani has raised went unanswered
for now. Given the current circumstances, an answer may not be needed for
several years, if ever.
[21]
Finally, taking account of the courts’ proper
role to decide real disputes between parties, not to legislate on academic
legal questions, I find that Mr Alani’s application falls into the latter
category. He raises a question of constitutional law whose factual context has
now evaporated. As the respondents point out, there is no longer any need to
decide whether a constitutional convention has been breached by leaving open
Senate vacancies beyond a reasonable period of time because the government has already
begun filling the vacancies and has committed to filling the remainder in the
near future.
[22]
Therefore, I find Mr Alani’s application to be
moot, and I can find no reason to exercise my discretion to decide the question
he raises.
III.
Conclusion and Disposition
[23]
Mr Alani’s application for judicial review was
based on a moratorium on Senate appointments imposed by former Prime Minister
Harper. That moratorium is now over; Prime Minister Trudeau has committed to
filling Senate vacancies and has, indeed, made several appointments.
Accordingly, Mr Alani’s application is moot.
[24]
Deciding the moot question raised by Mr Alani
would require the Court to decide a question that has no adversarial context,
to expend significant judicial resources better applied to other cases, and,
essentially, to legislate in respect of an academic constitutional question. In
the circumstances, I decline to do so.
[25]
The respondents, while recognizing that Mr Alani
brought his application in good faith as a concerned and interested citizen,
point out that he has pursued his case in the face of clear indications of
mootness and has put the government to substantial legal costs. They ask the
Court to grant them costs calculated according to the usual tariff. I agree and
will make the corresponding order.
[26]
As this decision involves an ancillary motion,
not the merits of the application for judicial review, I find that it does not relate
to a question of general public interest or importance. Therefore, this
decision does not fall within s 20(1)(a) of the Official Languages Act,
RSC 1985, c 31 (4th Supp), so I am releasing it in English only.
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