A question raised by some of the possible outcomes of Stephen Harper’s potential Senate appointments.If he were to make these appointments, and if the Coalition were to defeat the Conservatives when prorogation is finished, could those Senate appointments be reversed or not? I’m not interested in debating the Prime Minister’s ethical position, I’m just interested in the facts of this situation. Any one out there familiar with that part of the rules? I sure ain’t.
Short answer: No.
Can you elaborate? There was a Senator in 1998 who was away in Mexico on a semi-permanent vacation, and if I recall correctly, nothing could be done to remove him from the Senate. And, of course, when Brian Mulroney added members to the Senate in 1990, there was nothing anyone could do about it. It was slightly different then, as Parliament was in session and the PCs had a majority government.
Again, without wanting to draw us into the debate over what the Prime Minister should or should not do, I’m curious to know if there is anything that can be done to counter his appointments. Can the GG block the appointments? Can the Red Chamber refuse to swear them in? Is there absolutely nothing anyone can do about it? My perusal of the Senate rules isn’t turning up anything conclusive in this situation… I’d prefer to have chapter and verse, or at least precedent.
No doubt it’s all spelled out in the appropriate Act (Constitution Act?), but the Wiki article on the Canadian Senate gives some examples of situations in which a Senator’s seat becomes vacant:
No - because it’s not the Prime Minister who makes the appointment, but the GovGen, on the advice of the Prime Minister. The GovGen of course always follows the PM’s advice except in the most unusual circumstances.
See the Constitution Act, 1867, s. 24:
No, as s. 24 makes clear - once summoned by the GovGen, the person is a member of the Senate. The Senate has no control over the appointment.
Other than establishing a coalition to try to bring down the government before the appointments can be made 
, nope.
Of course, individual senators may cease to be senators pursuant to s. 31:
but you’ll note that the list doesn’t include “appointed by Prime Minister Harper.”
I think adding members to the Senate in this fashion is a prerogative of the Crown, but unlike other prerogatives, exerced by the Queen (under the advice of the prime minister) directly and not by the Governor General.
I’ve checked and this is spelled in section 26 of the Constitution Act, 1867. From Northern Piper’s link:
I do have another question. In most cases, legislatures have the right to control membership in them by refusing to seat or expelling members. But apparently, once named by the Governor General, senators take their seat immediately. Does the Senate have the right to expel members? How about the House of Commons?
Could the Constitution Act be amended to provide for the removal of Senators?
It could be amended to provide for anything, but I don’t think there’s any political will to amend the Canadian constitution in any way. 
It is a power of the Crown, but technically, it is not a prerogative power. Prerogative powers normally refer to the powers of the Crown that are defined by the common law and the unwritten portions. The power to appoint additional Senators is spelled out in the Constitution Act, 1867, as you mentioned, so it’s not considered a prerogative power. But you’re quite right that this is a power that the Queen exercises, not the Gov Gen. When PM Mulroney added the extra Senators using this clause, he gave the advice directly to Her Majesty, who then issued the appointments on that advice.
I can’t recall any cases where a Senator was expelled, but my initial reaction is that expulsion could only be for the grounds listed in s. 31. Otherwise, if the Prime Minister’s party has a majority in the Senate, what’s to stop the majority from expelling all members of other parties and letting the PM advise the GovGen to appoint his party members to all the vacancies, gaining 100% control of the Senate for his party?
Yes, s. 38 of the Constitution Act, 1982 is the general amending power, and s. 42 provides that any amendments to the Senate must be done under s. 38:
As Hypnogogic Jerk comments, just because the power is there does not mean there is any appetite to use it at the current time.
I find the part I bolded to be interesting. How often has that come into play, and is it absolute?
Ah, I did not know that. Thanks.
Many legislatures do have the possibility to refuse to seat or expel members. I think it’s the case with the House of Representatives in the US. As for why they do not use this power to expel all representatives from the minority party, I guess they know it would be totally politically unacceptable.
OK. I guess the point of my question was whether the amending process involved more than an ordinary majority vote in the Commons, and this makes clear that it does.
Exactly - but Senators are never up for election, so that check would not be present.
The Commons does have that power, but if it were to misuse it, that would be an issue at election time.
I think the closest the Senate came to expelling anyone was in the case of Andrew Thompson. It did suspend him, and then he resigned.
Thank you, Captain Amazing! I’ve been struggling for two days to come up with that name so I could look up the particulars of that Senate scandal.
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