11/12/2013 07:34 EST | Updated 01/23/2014 18:58 EST

Senate reform hearings start at Supreme Court

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.

Tuesday morning, government lawyer Christopher Rupar addressed the key issue of whether the Senate can be abolished using the "750 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 750 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.

Ontario argues against abolition, term limits

As the government completed its arguments, the provinces began theirs, starting with Ontario.

Representing the attorney general of Ontario, lawyer Michel Helie told the Court, "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 argued against the government's proposals for term limits for senators, saying 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

'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.