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(Fred Lum and Guy Nicholson/Photoillustration by Fred Lum and Guy Nicholson/The Globe and Mail)
(Fred Lum and Guy Nicholson/Photoillustration by Fred Lum and Guy Nicholson/The Globe and Mail)

Globe Essay

End run to an Americanized Senate Add to ...

Senators recently appointed from Ontario and Quebec might be expected to oppose such an outlook - but they are Conservatives (not Progressive Conservatives) - and likely share a desire to build structural roadblocks to activist government in Ottawa as a matter of principle. The power of a few elected senators could derail all manner of legislation offensive to Conservatives, whoever may hold a majority in Parliament.

Thus we see the marriage of a regional desire to permanently frustrate federal power with an ideological desire to do so. The very warning flags that some of us see arising from an elected Senate are banners of hope from other points of view.

Whatever the motivation, Mr. Harper's recurring legislation is a clear attempt to circumvent the Constitution in the service of a radical change to the distribution, structure and dynamics of political power. Following on the legal principle that a government cannot do through a second channel what the Constitution prevents it from doing through the first, you would think such a manoeuvre would be widely dissed and dismissed as ultra vires.

But it has not been so in the legal community, whose encouraging contemplation of this end run around the word and intent of the Constitution seems akin to complacent complicity. Nor has this initiative been clearly examined for its significance in our media (with few exceptions) - a striking failure of insight and oversight in Canadian journalism.

The provinces of Quebec and Ontario, at least, have served notice that they would challenge such legislation before the courts as unconstitutional, should it ever pass the Commons and Senate. Which invites the question: Could it pass the Commons and Senate on the way to a historic test at the Supreme Court of Canada?

Mr. Harper commands a minority of seats in Parliament (based on 37.7 per cent of the popular vote in the last federal election). The New Democrats and the Bloc Québécois favour abolition of the Senate (although the NDP may be willing to consider election if abolition fails). And the Liberals properly say: "Senate reform must be done in accordance with Canada's Constitution, and not unilaterally." So Mr. Harper appears to be stymied in the Commons.

At the right time, though, Mr. Harper might make this bill one ground for an election, knowing that, except in Quebec, public opinion polls support an elected Senate (in the absence of serious debate) by more than 60 per cent. In search of a majority government, Mr. Harper would argue that we need a "democratic Senate" through elections - a superficially attractive point, save that it ignores the consequence for the democratic system in Canada as a whole. Canada is clearly democratic now: The question is not whether the Senate is "democratic," but whether we should radically alter the structure of Canada's democracy by adding an elected Senate to the mix. If the answer is no, we could tolerate the status quo, or abolish the Senate entirely.


(In Britain, Gordon Brown is proposing election of the House of Lords - to be renamed the Senate - as evidence of his democratic-reform credentials. Such a move would have similarly radical consequences for the structure of power in Britain.)

Mr. Harper would also need a majority in the Senate itself to approve such legislation, and on such a dubious bill, even unelected senators might balk. But Mr. Harper has appointed 32 Conservative senators in the past two years on the explicit condition that they support his legislation to elect senators. There are now 51 Conservatives in a Senate of 105 members - much closer to the number required.

It is apparent that a Harper majority in the Commons, matched to a Conservative majority in the Senate, would create grounds for passing some version of the Senate Appointments Consultation Act, and set the stage for a Supreme Court decision on its constitutionality.

In contrast to the United States, Canada's democracy is of an Edmund Burke kind - an accountable mandate for a program writ large by representatives with a fair degree of autonomy and discretion operating within a disciplined team. The election of a powerful Senate that is entirely unrepresentative of Canada's population would distinctly undermine the capacity for efficient, accountable government in Ottawa, and alter the very fabric of federalism itself.

The Harper government's sly attempt to achieve this profoundly Americanizing shift through a bit of ordinary legislation in the face of the Constitution and experience in both Canadian and American history merits sober second thought indeed. Let's not let it happen.

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