Harper's Refusal To Fill Senate Seats Challenged In Court Amid Duffy Trial
Sorry, Steve, you don't get to pick and choose which parts of the job you want to do.
The challenge looks pretty solid to me:
"Alani argues that refusal to fill vacancies leaves provinces with fewer representatives in the Senate than they are constitutionally entitled to."
Yup. And that's a big problem. It's a denial of representation. But I love this part:
"In court documents, federal lawyers maintain it's the governor general's constitutional responsibility to appoint senators, that it's only by convention that the appointments are made upon advice from the prime minister.
They argue that conventions are not enforceable by courts and, in any event, that the Federal Court has no jurisdiction to hear such a case."
Oh, bullshit. Constitutional conventions (the unwritten parts) are fully enforceable as the written constitution is -- one of the legacies of having the United Kingdom as a mother country, which hasn't gotten around to writing down its own constitution yet. Arguably, there's more unwritten constitution than written constitution. Any first year law student knows this.
I don't know if you can compel the PM or GG to take a positive action (probably not), but you can certainly get the Court to issue a declaration (a sternly worded letter, basically) saying that they're being naughty boys and they should stop it.
But yeah -- it's a short-sighted argument on the feds' part anyway. Take away that mere 'convention', and the GG doesn't need to accede to a PM's request to, say, prorogue Parliament. We had the whole King-Byng Crisis over these conventions.
What the hell. Of course, lawyers need to advocate their client's strongest position, but to advocate against principles of law that are patently trite -- this is fucking embarrassing.