The Supreme Court of Canada building in Ottawa.DAVE CHAN/The Globe and Mail
The day after the Canadian government said the Senate has failed to live up to its founders' goal of independent reflection, supporters of the Red Chamber offered impassioned defences, and judges mused aloud that if the Senate could be made to disappear, so could the House of Commons.
"The Senate is the provinces' house," Spencer Campbell, a lawyer for Prince Edward Island, said on Wednesday at a second extraordinary session on Senate reform at the Supreme Court of Canada.
The Canadian government is proposing to create elections for senators and set a term limit of nine years to make the Senate more democratic and relevant. It is asking the Supreme Court if it can make those changes on its own, without provincial consent. Currently, senators are appointed, and may sit until they are 75.
In response to the federal government's argument that the Canadian Constitution allows it to make the changes unilaterally, Mr. Campbell said PEI and some other provinces "feel that our house is under renovation without our consent. We feel like we have something going on and we have no say or control if this interpretation is approved. Why should we be excluded from this process?"
At least one judge was underwhelmed. "Aren't you overstating the case?" Justice Marshall Rothstein asked.
PEI's arguments are important because they touch on an unwritten principle at the heart of the case: federalism. Mr. Campbell defined that principle as a "fine balance" between Ottawa and the provinces. The Senate was created to give small provinces a stronger voice in Parliament, countering the representation by population in the House of Commons.
Serge Joyal, a senator for the past 15 years who has standing as an intervenor, told the court the Senate has shown its independence many times, such as when Progressive Conservative Pat Carney voted against her party's bill on abortion in 1991, causing it to die on a tie vote. (Canada has had no criminal law on abortion since.)
Mr. Joyal warned against allowing Ottawa to disrupt senatorial independence by creating term limits without provincial consent, and said the Senate helps protect the anglophone minority in Quebec. (A group representing francophones outside Quebec made a similar point in court.)
"Before abolishing by a stroke of the pen the protection of the anglophone minority in Quebec, I think we should have, as we say in the Senate, sober second thought," Mr. Joyal said.
The Canadian government is also asking the court whether it can abolish the Senate with the consent of just seven provinces and 50 per cent of the population, rather than unanimity.
British Columbia and Saskatchewan agreed that the Senate could be abolished without unanimity. Abolition is not mentioned in the constitution's sections on the procedures for amendments, so the provinces and Ottawa have been trying to read between the lines.
After listening to lawyer Nancy Brown present B.C.'s views, Justice Thomas Cromwell of Nova Scotia said, "Your position is that we could abolish both the Senate and the House of Commons" with the approval of just seven provinces that have 50 per cent of Canadians?
"Exactly," Ms. Brown replied.
Justice Andromache Karakatsanis of Ontario noted that the right to vote and to have elections are also not mentioned in the rules for amending the constitution, and asked lawyer Graeme Mitchell, representing Saskatchewan, whether those rights could be ended with the consent of seven provinces with 50 per cent of the population.
"They're dealt with under the Charter [of Rights and Freedoms]," he replied.
Justice Karakatsanis pointed out that the charter can be changed with the agreement of seven provinces with 50 per cent of the people.
When Mr. Mitchell agreed, Justice Louis LeBel of Quebec jumped in. "So Canada could be turned into a dictatorship" under the section that provides for amendments by a majority of provinces and population.
"In the very unlikely event that that would ever happen," Mr. Mitchell said.
Some judges appeared to feel the discussion was becoming too theoretical. Justice Michael Moldaver said that, under the court's jurisprudence, the country could be "dissolved completely" with such consent.
"That's right," Mr. Mitchell said.
Mr. Mitchell said Saskatchewan's legislative assembly passed a unanimous resolution last week calling for the Senate's abolition. "The institution in its current form is beyond repair," he said. And "this court should be sensitive to the fact that in a federal system such as ours, unanimity is extremely difficult to obtain."
But he said abolition "doesn't mean the end of bicameralism."
Justice LeBel disagreed. "It would mean the end of bicameralism for a time."
"But that is how a country evolves," Mr. Mitchell said.