The Canadian government is casting the Senate as a politically partisan institution that has veered too far away from the independence intended by the country's founders.
Ottawa's push to transform the Senate spurred extraordinary arguments on either side of the historic debate on Tuesday, with separatist Quebec decrying the possibility of abolition without unanimous consent of the provinces and smaller provinces such as New Brunswick saying its creation was one of the reasons they joined the country in the first place.
Amid an expense scandal plaguing three of its appointees, the Conservative government is pushing for radical changes, including term limits and a system of elections.
The nation's top court must decide whether Parliament can make the changes on its own, without consulting the provinces – or, in the case of abolition, require the consent of just seven provinces with 50 per cent of the population.
Robert Frater, lawyer for the Canadian government, argued that the Senate had never lived up to the goals of Confederation's founders – to be an independent upper chamber of sober second thought. "All the experts agree [independence] was the goal. We would say it was more aspirational than achieved, in the history of the Senate," Mr. Frater said. He noted that 95 per cent of appointments have been members of the governing party.
But the Senate's alleged failure to be independent left judges to question whether the key to the case was protecting the intent of the founders, or the essential, enduring features of the Senate – of which independence does not seem to be one.
"It reminds me a little bit of American originalism," Chief Justice Beverley McLachlin said, of the notion that the court should follow the original intent of the founders. Later she said, "the question is, what are the central features that have endured over time." Justice Rosalie Abella asked whether independence was a central feature, since it did not seem to have endured.
Mr. Frater told the court the Canadian government wants to democratize the Senate by turning it into an elected body with term limits of nine years, but several judges questioned why the government insists the proposed changes aren't fundamental, and therefore do not need provincial approval.
The creation of "consultative elections" would not count as a change in law because the prime minister would retain his discretion to appoint whomever he pleases, Mr. Frater said, regardless of who wins those elections. Mr. Frater also said the proposed term limits aren't much different from the average of 11.3 years senators have served since 1965.
And the winners of Senate elections would not necessarily be appointed to the Senate, he said. "The system of consultative elections lacks the essential feature of the direct election, namely, the right of the winner to hold public office. It's simply the right to be considered by the prime minister."
"If the purpose is democratizing, how is it the prime minister wouldn't feel obliged to appoint the winner?" Justice Marshall Rothstein of Manitoba asked, prompting Mr. Frater's acknowledgment that the prime minister might feel obliged.
Justice Thomas Cromwell of Nova Scotia asked Mr. Frater whether the same kind of consultative elections could be held for the appointment of Superior Court judges without requiring an amendment to the Constitution, and therefore provincial approval. Mr. Frater replied that he agreed – it could be done unilaterally by Ottawa. Justice Cromwell was incredulous. "Are you seriously suggesting … it would not amend the Constitution?"
Mr. Frater stood his ground, citing Saskatchewan's argument that the proposed method of election is no different in law from a non-binding referendum – a form of advice for the prime minister.
Most provinces argue that the changes would require the approval of at least seven provinces with 50 per cent of the country's population, under the amending formula of Canada's Constitution.
Ontario told the court that any fundamental changes to the Senate need provincial support, because those changes would affect provincial interests. The balance between provincial and federal powers is key to Canada's survival, it argued.
"Constitutions are difficult to change for a reason," Ontario's lawyer, Michel Hélie, told the court.
Quebec argued against the federal government's power to make unilateral changes to the Senate, calling the Red Chamber part of the "covenant of Confederation," a covenant that could not be broken without the agreement of seven provinces with 50 per cent of the population.
And Quebec expressed deep concern about abolition, saying that "you can't amputate one of those houses" without unanimous provincial consent, not simply the seven provinces and 50 per cent of the population espoused by Ottawa.
New Brunswick's lawyer, Denis Thériault said the province joined because of Sir John A. Macdonald's description of the Senate as a means to give small provinces a stronger voice than they would have in the House of Commons.