The federal government has asked the Supreme Court to weigh in on whether it can unilaterally reform or abolish the Senate
The provinces are weighing in on Senate reform hearings that began today in Canada's top court, opposing the federal government's proposals for term limits and the creation of a process for electing senators.
The historic case began Tuesday in the Supreme Court of Canada in Ottawa, and will determine how — or if — the much-maligned, scandal-plagued Senate can be reformed or abolished.
The court is deliberating a reference from Prime Minister Stephen Harper's government about reform of the upper chamber, and whether abolition of the Senate could be done with the approval of just seven provinces, representing 50 per cent of the population.
Representing Ontario's attorney general, lawyer Michel Helie told the court, after federal lawyers laid out their arguments, that "constitutions are difficult to change for good reason."
The Senate is an integral part of federalism, he said, adding, "The principle of federalism remains of existential significance to this country."
He said if senators were given eight-year appointments, a two-term prime minister could appoint everyone in the Senate.
Ontario also contends that the Senate cannot be abolished without the consent of all the provinces.
Quebec, Nova Scotia, Manitoba and New Brunswick argued their cases Tuesday. On Wednesday the rest of the provinces, as well as two territories, will make submissions. Two senators — Anne Cools and Serge Joyal — will also appear Wednesday before the court.
Government argues its case
On Tuesday morning, federal government lawyer Christopher Rupar addressed the key issue of whether the Senate can be abolished using the "7/50 formula," that is, seven provinces and 50 per cent of the population, or if unanimity is required with all 10 provinces consenting.
Rupar pointed out unanimity has never been achieved in amending the Constitution, and even the 7/50 formula is rarely reached. However, he contended the Constitution says unanimity is required only if the base number of MPs were to be changed, but not, he said, for the base number of senators.
He also argued the Senate could be abolished simply by removing its powers to amend legislation. Justice Michael Moldaver drew one of the few laughs from the courtroom by asking, "Do we just pension off everyone in there?"
Government prefers elected senators
Another government lawyer, Robert Frater, was questioned closely by the eight Supreme Court justices hearing the case about his argument the government has the option to name senators to the upper chamber who win "consultative elections" in their provinces.
Justice Rosalie Abella asked if the government wouldn't be forced to appoint people who are successful candidates of elections, and Justice Marshall Rothstein wondered why individuals would go to the expense of running in a Senate election if they thought they might not be appointed to the Senate.
Frater insisted the prime minister had only to "consider" winners of elections, and would retain the right to name people to the Senate, if, for example, more diversity in the Senate were desired.
Frater began his arguments by reminding the Court the Senate has been changed unilaterally in the past, in 1965, when the retirement age for senators was set at 75 years. Before then, senators were appointed for life, and Frater pointed out at least 20 judges served into their 90s and two reached 100.
The government also created new Senate seats for the territories, Frater said, building his case that the government has the power to alter the tenure and change the structure of the Senate.
Quebec, Nova Scotia, Manitoba and New Brunswick all spoke against the abolition of the Senate without the consent of all provinces and territories.
Quebec's lawyer, Jean-Yves Bernard, also disagreed with the government's opinion it could unilaterally change Senate terms and appointment methods because it had once, on its own, ordered senators to retire by age 75.
That was so that senators could have pensions, Bernard said, and was mere "housekeeping." He added, "You cannot use that argument for unilaterally imposing term limits."
Manitoba's lawyer, Heather Leonoff, argued term limits would impinge on senators' independence, prompting Chief Justice Beverley McLachlin to point out that judges' independence means they have no political connections, but that can't be said of senators.
Leonoff said Manitoba, like most other provinces except Quebec, does not object to the government's proposal to eliminate the $4,000 property requirement for senators. Quebec said even that change requires a constitutional amendment.
Leonoff said she wasn't suggesting the $4,000 figure could be raised to $4 million, because that would be elitist.
Wasn't the Senate meant to be elitist when it was created in 1867? asked Justice Rothstein, smiling.
"Living tree, Justice Rothstein," Leonoff shouted, meaning the theory of interpreting the Constitution as a document that evolves over time.
"Whatever works," Rothstein replied, prompting Leonoff, also smiling, to say, in the most spirited exchange of the day, "Welcome to the law, Justice Rothstein. That's what we lawyers go with — whatever works."
New Brunswick's lawyer, Denis Thériault, pointed out the importance of the Senate to a small province. New Brunswick has only 10 MPs out of what soon will be 338, but is constitutionally guaranteed 10 senators among 105.
If the court accepts the government's proposition the Senate could be abolished with the 7/50 formula, Thériault said, the Senate could disappear even if New Brunswick, Nova Scotia and P.E.I. voted to keep it. Those were the provinces, he said, the Senate was designed to protect.
'The Senate must change, or vanish'
A half-hour before court began hearing arguments, the minister of state for democratic reform addressed reporters in the foyer of the House of Commons. "The Senate must change, or vanish," Pierre Poilievre said, "The status quo is not acceptable."
Poilievre might have been sending a message to the court, saying, "We look forward to receiving the court's advice in due course, so we can finally move past opposition obstruction and enact real reform."
But he refused to answer reporters' questions, explaining the matter was about to be litigated at the Supreme Court, although in fact there would have been no legal impediments at that point in addressing the case.