The Senate has always been a House under a cloud.
The Fathers of Confederation cobbled it together in part to protect people like themselves against the rabble, which is why senators still have to meet a property qualification: “We must protect the rights of minorities, and the rich are always fewer in number than the poor,” as Sir John A. Macdonald put it.
Because its members are appointed, prime ministers since Confederation have stacked the Senate with party bagmen and loyalists, leaving it in perpetual disrepute: “Probably on no other public question in Canada has there been such unanimity of opinion as on that of the necessity for Senate reform.” Prime Minister Stephen Harper likes to offer that quote, and then point out that it was written in 1926.
However, it has turned out that Mr. Harper's idea of reform is to make the Senate more Conservative and more powerful. On his watch, the Tories have achieved a majority in the chamber for only the second time in 70 years. And they are using that majority to veto legislation passed by the House of Commons, which the Senate was never meant to do.
If the Prime Minister gets his way, new legislation will make the Senate more powerful still, because its members will be elected to fixed terms. Some think this new Senate would be more legitimate and effective. Others fear it'd be a nightmare.
Whatever the Senate could become it is becoming already. The Other Place, as MPs like to call it, is actually starting to matter.
Rewriting the House rules
The House of sober second thought is not supposed to be powerful, though it has reared up before – most famously in 1988, when it refused to pass the U.S. free-trade deal until Brian Mulroney held an election on it.
But, centrally, its role “rests on obstruction. Rather than empower, it restrains government,” wrote University of Saskatchewan political scientist David Smith, one of Canada's leading authorities on the Senate.
It did, that is, until Stephen Harper and perpetual minority government arrived.
When Mr. Harper became Prime Minister in 2006, he promoted legislation that would limit senators' terms to eight years. He invited provinces to hold elections to fill senatorial vacancies and promised to appoint the winners.
But outside of Alberta, premiers had little appetite for sending senators to Ottawa who might compete with them as their provinces' voices. So in 2008 the Prime Minister began filling all available vacancies with good Conservatives, from the famous athlete Nancy Greene Raine to his former press secretary, Carolyn Stewart-Olsen.
By last January, the Conservatives had a Senate plurality; in December, an absolute majority.
A brake or a bomb?
While all this was happening, Parliament evolved in strange ways, as minority governments became entrenched and a majority for either the Conservatives or the Liberals seemed out of reach.
The Liberals, NDP and Bloc Québécois began passing legislation the government opposed, such as a plan to cut back on carbon-dioxide emissions; requiring all Supreme Court judges to be bilingual; providing tax credits for university graduates who work in certain regions; and offering restitution for Italian Canadians interned during the Second World War.
Imposing a caucus discipline to which the Senate is unaccustomed, the Conservatives used their majority to defeat the environment bill outright in an unusual snap vote. For other legislation, their preferred method is to defeat through delay. The bilingual Supreme Court bill, for one, languishes in debate and may never come to a vote.
“The majority in the Senate is prepared to use the legal powers that the Senate has” to block legislation from the House of Commons and to push legislation of its own, argues Jennifer Smith, a political scientist at Dalhousie University. “It's very important and it's likely to increase.”
