OTTAWA—The Supreme Court of Canada’s reference hearing on Senate reform was part history lesson, part political theatre.

It was also a withering exercise in locating “change” on Canada’s constitutional roadmap — the path Ottawa must follow if it is to enact Senate term limits and elections, or kill it altogether.

The backdrop to it all — an expenses scandal plaguing the modern Senate, an impatient Conservative prime minister who long promised reform — went unmentioned.

But no one escaped a tough judicial grilling Tuesday at the start of the historic reference. Not those who want change, nor those who are resisting it.

The federal government has asked the court a series of questions that amount to this: can Ottawa make Senate changes on its own, or does it need provincial consent, and if so, how much is enough.

The chief justice and her colleagues drilled down on Ontario and other provinces that cited “lovely principles” of federalism, and clung to the notion the Senate was designed in 1867 to represent regions and minorities and cannot be easily altered without provincial agreement.

They repeatedly reminded the array of black-robed lawyers the Supreme Court of Canada has long viewed the Constitution as a “living tree” — a document that can evolve to reflect changing realities in society. One Quebec lawyer mused back if the Senate is a living tree, perhaps it needs just pruning.

Justice Rosalie Abella challenged Nova Scotia’s lawyer: “Why would you be urging us to take an approach that makes it harder, rather than easier, to reform?”

When he replied that was the framer’s original intent, that it “ought to be difficult” to change the Senate, she interjected: “Ought it be impossible?”

But the Supreme Court of Canada judges were hardest on the federal government’s legal team. The federal lawyers argued Canada set out new rules in the 1982 Constitution that permit Ottawa to act alone to limit how long a senator can hold his seat and to establish “consultative elections” before one is picked.

Ottawa concedes abolition would require the buy-in of at least seven provinces with half the nation’s population. However, most provinces argue it would take more than that: unanimity.

Federal lawyer Rob Frater’s main contention was that Prime Minister Stephen Harper’s proposed changes don’t fundamentally alter the powers of the Senate, nor the method of selecting senators. He suggested the provinces are holding to archaic notions of what change is permissible.

Abella quipped: “Your view is there is a form of ‘originalism’ but it goes back to 1982 not 1867?”

Yes, said Frater, urging the court not to focus on the merits of the proposed reforms, just on the rules for how to achieve them.

He downplayed their impact, saying the changes would reflect the status quo in practice: senators usually sit for about 11 years anyway, and the prime minister would still retain the final power to appoint who he sees fit.

Elections would not be binding. They would simply inform a prime minister’s recommendation to the Governor General, and as such, would not amount to a constitutional change that required the approval of provinces, said Frater.

A prime minister would be free to ignore the democratic result of any “consultative” election and appoint someone else in the name of promoting “another democratic value” such as diversity, Frater said.

The irony did not go unnoticed.

Justice Marshall Rothstein said dryly if the whole point is democratization of the institution, “how is it that the prime minister would not be obliged to consider the results of the election? It hardly goes to democratic values if the winner isn’t chosen.”

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Justice Thomas Cromwell asked incredulously “Are you seriously arguing” the government could hold elections for federally appointed judges, such as the Supreme Court of Canada and superior appellate and trial courts, and that would not amount to a constitutional change.

“Yes,” said Frater. “There is no change to the Constitution if all you’re doing is changing the process leading up to the decision-making.”

Ontario, Manitoba and Quebec lawyers trashed the federal reasoning.

Quebec’s Jean-Yves Bernard

slammed the Conservative government for failing to even attempt a provincial consensus. He said since 2006, Ottawa tabled eight bills to modify the Senate and yet “not one constitutional conference was brought forward to attempt to make a constitutional amendment.”

At the outset, Abella zeroed in on the role of the Senate to provide independent legislative review or “sober second thought” and asked if senators seeking renewal or post-Senate careers wouldn’t want to curry favour with a prime minister and so “impair the functioning of this body.”

Frater dismissed claims of Senate “independence” as suspect, saying bluntly senators vote with their caucus: “It’s a partisan body.”

Rothstein challenged Frater over whether the federal government could unilaterally set shorter term limits of four years without affecting notional independence.

“I want to know if we’re talking about principle or price,” said Rothstein. “I mean if we’re talking about principle, it shouldn’t matter whether it’s four years or eight years.”

Frater conceded short terms could be seen as an attempt to change the powers of the Senate and so would require the approval of seven provinces.

Ontario lawyer Michel Hélie said if the terms were long enough to allow senators independence from the government of the day, say 10 years, the federal government likely could act unilaterally.

But Hélie scorned the idea that elections would automatically improve the Senate: “Few would insist that the United States is a more democratic country merely because it elects the proverbial dogcatcher, many of its judiciary and its head of state.”

Rather, he urged the court to see the Senate as a key house of Parliament that has a constitutionally enshrined legislative role.

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