Samson v. Canada (Attorney General), docket T-1706-98

     Date : 19980901

     Docket : T-1706-98

BETWEEN:

     LORNE SAMSON, JOAN SAMSON,

     GRANT HILL, DEBORAH GREY,

     and

     THE REFORM PARTY OF ALBERTA

     Applicants

     - and -

     ATTORNEY GENERAL OF CANADA and

     THE GOVERNOR GENERAL OF CANADA

     Respondents

     REASONS FOR ORDER

     [Delivered from the Bench in Ottawa, Ontario

     on Tuesday, September 1, 1998]

McGILLIS, J.

[1]      The applicants have applied for an interlocutory injunction to restrain the Governor General of Canada from appointing to the Senate a qualified person from the Province of Alberta, unless that person has been elected pursuant to the provisions of the Senatorial Selection Act, R.S.A. c. S-11.5.

[2]      In determining whether an interlocutory injunction ought to be issued, the following test, which was reaffirmed by the Supreme Court of Canada in R.J.R. - MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, 334, must be applied:

[3]      The threshold question to be considered on this application is whether the applicants have established that there is a serious issue to be tried in this matter.

[4]      Sections 24 and 32 of the Constitution Act, 1867 expressly confer on the Governor General the unfettered discretion to appoint qualified persons to the Senate. Those sections read as follows:

     24. The Governor General shall from Time to Time, in the Queen"s Name, by Instrument under the Great Seal of Canada, summon qualified Persons to the Senate; and, subject to the Provisions of this Act, every Person so summoned shall become and be a Member of the Senate and a Senator.

     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.

     24. Le gouverneur général mandera au Sénat, de temps à autre, au nom de la Reine et par instrument sous le grand sceau du Canada, des personnes ayant les qualités requises et, sous réserve des dispositions de la présente loi, les personnes ainsi mandatées deviendront et seront membres du Sénat et sénateurs.

     32. Quand un siège devient vacant au Sénat par démission ou décès ou pour toute autre cause, le gouverneur général y pourvoit en adressant un mandat à une personne capable et possédant les qualités requises.

[5]      Under the express and unequivocal terms of sections 24 and 32 of the Constitution Act, 1867, the Governor General"s power to appoint qualified persons to the Senate is purely discretionary. In other words, there are no procedural or other limitations restricting the exercise of the Governor General"s discretionary constitutional power of appointment under sections 24 and 32. A limitation could only be imposed on that power by means of a constitutional amendment to sections 24 and 32, effected in accordance with the procedure prescribed in Part V of the Constitution Act, 1982. In the circumstances, the Court cannot impose procedural or other limitations on the Governor General"s express power of appointment to the Senate, or otherwise fetter the exercise of his discretion. [See also Singh v. Canada ; Leblanc v. Canada (1991), 30. R. (3d) 429 (Ont. C.A.); Reference re Appointment of Senators Pursuant to the Constitution Act, 1867 (1991), 78 D.L.R. (4^th) 246 (B.C.C.A.); Brown v. The Queen in Right of Alberta, July 28, 1998 (Alta., Q.B.)]

[6]      The Governor General"s constitutional power to appoint qualified persons to the Senate is also purely political in nature. In practice, the Governor General exercises his power of appointment on the advice and recommendation of the Governor-in-Council. In the event that the Governor-in-Council makes a recommendation which ignores the pending election to be held in Alberta under the provisions of the provincial Senatorial Selection Act , it proceeds at its own political peril. However, that is a purely political decision to be made by politicians, without the interference or intervention of the Court.

[7]      Counsel for the applicants relied heavily in his submissions on various statements made by the Supreme Court of Canada in Reference re Secession of Quebec, (no. 25506, August 20, 1998). In my opinion, nothing in that case supports the proposition that a court may ignore the express and unequivocal provisions of the Constitution Act, 1867. I also note in passing that the Quebec Secession Case dealt with a situation involving a constitutional void. In the present case, express and unequivocal constitutional provisions govern the appointment process to the Senate.

[8]      Counsel for the applicants also submitted that the Governor General"s appointment of Mr. Stan Waters of Alberta to the Senate in 1990, following his election under the provisions of the Senatorial Selection Act , constitutes a "precedent" or a "convention" which may alter the express terms of the Constitution Act, 1867. I cannot accept that argument. The fact the Governor General on one previous occasion, acting on the advice and recommendation of the Governor-in-Council of the day, appointed to the Senate a person who had been elected in Alberta under the Senatorial Selection Act does not constitute a "convention" which alters the express wording of the Constitution Act, 1867. It was simply a political decision made by the Government of the day at that particular time in our nation"s history.

[9]      In my opinion, the applicants" claim in this matter is political, and not legal, in nature. As a result, the relief which the applicants seek in their application may only be attained in the political arena by means of a constitutional amendment. I have therefore concluded that the applicants have failed to establish that the case raises a serious issue to be tried. In the circumstances, it is unnecessary for me to address the other two branches of the test.

[10]      The application for a interlocutory injunction is dismissed.

OTTAWA

September 1, 1998