11/14/2013 01:16 EST | Updated 01/23/2014 06:58 EST

Senate Reform Should Be Controlled By Ottawa Alone, Feds Argue


OTTAWA - Don't make it impossible to change Canada's scandal-plagued Senate.

That was the underlying message to Supreme Court justices Thursday as they wrapped up a historic hearing that will decide how — or if — the much-maligned upper house can be reformed or abolished.

In the final word at the three-day hearing, the federal government urged the justices to accept its argument that modest reforms — to allow for non-binding elections and term limits for senators — can be implemented easily by Ottawa alone, without any input from the provinces.

"This is not a narrow-minded, literal approach (to the Constitution), as has been repeatedly said (by provinces) in these proceedings," federal counsel Robert Frater insisted.

"It is a comprehensive approach that should permit meaningful action on reform to the Senate instead of another 135 more years of talk."

His argument got partial support earlier Thursday from one of two lawyers appointed by the court to provide independent advice on the matter.

John Hunter said the federal government alone should be able to create a process to allow consultative elections for senators, provided that the results are not binding and the prime minister remains free to appoint whomever he or she chooses.

He argued that this would simply amount to another form of consultation for the prime minister, who can already consult whomever he or she pleases about Senate appointments.

"The reality is that those who would oppose this would really say the prime minister can get sources of guidance from any source he or she wishes. He can talk to his friends, political party activists, he can read petitions, he can use a ouija board," Hunter said.

"The only thing he can't do is consult the electorate and that's a rather remarkable proposition."

The other lawyer appointed by the court, Daniel Jutras, disagreed. He joined the vast majority of provinces in arguing that creation of a Senate election process would require a constitutional amendment supported by at least seven provinces with 50 per cent of the population.

Jutras and Hunter were in sync on other issues before the court. They both sided with most provinces in arguing that 7-50 approval would be needed to impose term limits on senators and that unanimous provincial consent would be necessary to abolish the red chamber entirely.

The federal government maintains 7-50 would be sufficient for abolition.

None of the various amending formulas in the Constitution specifically address the issue of abolishing the Senate but Jutras said that silence should be broadly interpreted to mean "such a fundamental change to the constitutional order" would require unanimous consent.

Chief Justice Beverley McLachlin appeared to agree.

She suggested fundamental characteristics of the federation — including the assumption that Canada would continue to have two houses of Parliament — were "embedded" in the 1982 Constitution Act by first ministers who did not contemplate ever doing away with them.

"One could infer from that ... they are just fundamental propositions, so fundamental that if we were to question them, we don't know where we'd be going. We'd be in outer space," McLachlin said.

"I think we're saying exactly the same thing," replied Jutras.

The top court could take six months to a year to mull over the arguments made by the federal government, all 10 provinces, two territories and several other interveners.

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