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Politics 'Literal' approach hinders Senate reform, federal lawyer urges court

A person walks from the Supreme Court of Canada in Ottawa on Feb. 27, 2013. A Toronto lawyer is teaming up with the Constitutional Rights Centre Inc. to challenge the legality of the Prime Minister’s latest appointment to the Supreme Court.

Sean Kilpatrick/The Canadian Press

Modernizing the Senate will probably never happen unless the Supreme Court permits the federal government to bring it into the 21st century without provincial consent, a lawyer for the Canadian government has told the Supreme Court.

With the Senate roiled by the suspension of three of its members over an expenses scandal, the government is proposing nine-year term limits and a system of elections for senators, and asked the court to rule on whether Ottawa can make those changes on its own.

The Canadian government is pushing for "meaningful action, instead of 135 more years of talk," lawyer Robert Frater told the court in final arguments on Thursday.

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The court has often ruled that the interpretation of the Constitution changes with the times – the Conservative government pointed to same-sex marriage to make that case – and Ottawa said the Senate should be allowed to evolve, too, to meet its original purpose of independent sober second thought.

The appointment of senators "is not some sort of eternal verity of the institution," Mr. Frater said. He cited the work of McGill University political scientist Christopher Manfredi, who says that the Senate stayed an appointed body, rather than elected one, because the expense and difficulty of contesting elections in the horse-and-buggy era.

"Those concerns have disappeared through technology and time," Mr. Frater told the eight judges hearing the case. A ninth, Justice Marc Nadon, has stepped aside during a legal challenge to his appointment.

Prime Minister Stephen Harper has long promised to reform the Senate, and pushed unsuccessfully for Senate elections and fixed terms shortly after he came to office. If the Supreme Court's ruling does not allow the government to make changes without provincial consent, some Conservative MPs have advocated for a referendum on abolishing the Senate. But abolition would require provincial approval – perhaps even unanimity.

The Canadian government appears to be at a disadvantage at the Supreme Court because the Constitution says clearly that changes to the method of selecting senators need the approval of seven provinces with 50 per cent of the population. The government argues, however, that the system would stay the same, in law, because the prime minister would still have discretion, and could reject the winners of Senate elections.

Perhaps mindful that some judges, and nearly all the provinces, had disparaged this argument as too rigid and literal-minded, Mr. Frater told the court that "this is not a narrow-minded, literal approach" to the Canadian Constitution. It is an approach that is meant to create action, he said.

The judges seem almost certain to reject the government's reasoning, and to look at the effect of the proposed changes on the Senate's essential goals and way of functioning. "The question we really have to focus on is whether an election list from which the prime minister chooses [senators] would have an enduring effect on what the Senate is, how it functions," Chief Justice Beverley McLachlin said earlier in the morning session, before Mr. Frater spoke.

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But she was told that is the wrong question – a political question the court does not need to ask. John Hunter, a Vancouver lawyer appointed by the Supreme Court as one of two "friends of the court" to give an independent opinion, said the key is whether the election results are binding on the prime minister. He said Alberta's experience with Senate elections since 1989 is that the results are not binding.

Justice Marshall Rothstein challenged him. "But that's not federal legislation. Isn't that quite a significant difference?"

"It's no difference at all," Mr. Hunter replied.

The case is expected to take a year or more to decide, based on the experience with previous reference cases (in which the Canadian government asks for an advisory opinion on a major issue).

With a report from Kim Mackrael

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