Canada's top court began hearing arguments today in a historic case that will determine how — or if — the much-maligned, scandal-plagued Senate can be reformed or abolished.
Prime Minister Stephen Harper's government has asked the Supreme Court of Canada to advise whether it can proceed unilaterally to impose term limits on senators and create a process for electing them.
It has also asked the court to determine whether outright abolition of the upper chamber could be accomplished with the approval of just seven provinces, representing 50 per cent of the population.
The vast majority of provinces argue that the constitutional hurdles should be set much higher: the approval of at least seven provinces to reform the Senate and unanimity to abolish it.
((Tom Hanson/Canadian Press))
The provinces acknowledge in factums filed with the court that the higher standard would make reform or abolition more difficult, if not impossible, to achieve — no matter how appealing in the midst of the current Senate expenses scandal.
But they maintain the Senate is an essential part of the bargain struck at Confederation, meant to give a equal voice to small provinces and minorities in counter-weight to the dominance of populous provinces in the elected House of Commons.
Government prefers elected senators
The 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 tenure and change the structure of the Senate.
'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 just 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.
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