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The Senate chamber sits empty on in Ottawa on Jan. 13, 2011. (Sean Kilpatrick/THE CANADIAN PRESS)
The Senate chamber sits empty on in Ottawa on Jan. 13, 2011. (Sean Kilpatrick/THE CANADIAN PRESS)

The House that Stephen Harper built Add to ...

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.

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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."

Conservative Senator Hugh Segal says he and his colleagues are only doing their duty: "The government side in the Senate has a primary duty to the government's agenda."

Creasing the Constitution

But for Liberal Senator Serge Joyal, who is viewed as an authority on the Senate's role within Parliament, these vetoes and filibusters send the Senate into uncharted territory. "If you use the majority for all kinds of political reasons ... you are doing something very serious to the constitutional framework of the country," he maintains.

Prof. Smith sees the Harper government's actions as a prologue to a more radical future. "Because they have the idea that they are somehow heading toward an elected Senate," vetoing opposition bills "partly enables them in their own minds to see this as legitimate, as, 'This is what an elected Senate could look like.' "

The Tories continue to push for reform. A bill before the Senate would limit terms to eight years, while the House is once again considering legislation that would invite provinces to hold elections to select Senate nominees, though it is unlikely to pass unless and until the Conservatives win their elusive majority.

For Marjory LeBreton, the government leader in the Senate, electing senators would go a long way toward making the Upper House legitimate in the eyes of Canadians: "It makes no sense to have a parliamentary body that has remained virtually unchanged since Confederation."

But Prof. Jennifer Smith is convinced that, apart from being unconstitutional, an elected Senate would cause more problems than it would solve - namely, U.S.-style legislative gridlock.

"They're not going to be elected to play second fiddle," she maintains. "They will have a much more robust view of what their position is. ... It would disable governments when they needed to make tough decisions."

Confederation's fine mess

The Senate is a problem that can't be fixed.

Its mandate to protect the propertied class against the rabble is an anachronism. Its mandate to represent the regions within Parliament was hopelessly compromised when Atlantic Canada was allowed to have 30 senators and Western Canada was given only 24. And its unelected collection of patronage appointees makes any defender of democracy's blood boil.

But any substantial improvement would require constitutional reform, which is politically impossible.

Mr. Harper's proposal may or may not survive a court challenge. But if it does, an elected Senate will inevitably become more powerful.

There will be confrontations and possibly even paralysis. But the government of Canada will be more democratic.

Canada is rather like the bumblebee, which, according to an urban myth, scientists have proved cannot fly.

An elected Senate "does add a little bit of weight to the bumblebee and does make it theoretically less able to fly," Mr. Segal observes. "But somehow the bumblebee doesn't know that and keeps on flying."

John Ibbitson is The Globe and Mail's Ottawa bureau chief

Follow on Twitter: @JohnIbbitson

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