Trudeau's Senate rep takes issue with Scheer's plans for the Red Chamber

The Liberal government's representative in the upper house is warning that the election of Conservative Leader Andrew Scheer as prime minister would risk reverting the Senate to a body dominated by "a practice of partisanship that has not served Canada well."

And Ontario Sen. Peter Harder is touting legislative changes — which could take effect as soon as this spring — to cement the place of Independents appointed by Prime Minister Justin Trudeau in the event the Conservatives win the next election and begin the process of unravelling some of the Liberal-backed reforms.

Scheer has said he would be inclined to appoint party members to fill the benches of the Red Chamber, in accordance with the long tradition of the upper house, and promised to pick "Conservative senators who would help implement a Conservative vision for Canada."

"It concerns me only in the sense that were he to fulfil that promise, he would be undermining the achievements of a less partisan, more independent chamber and revert to a practice of partisanship that has not served Canada well," Harder, Trudeau's point man in the Senate, said in a year-end interview with CBC News.

"And, by the way, he'd face a majority of Independent senators that would not share that vision."

Ballot question?

Under the former Conservative government, as court documents in the Mike Duffy trial showed, some of the decisions in the Red Chamber were carried out at the direction of political staff in the Prime Minister's Office — a level of interference many felt undermined the chamber's independence and minimized its role as a complementary chamber of sober second thought.

Even today, Harder said, Tory senators are subjected to demands from the party leadership in the House of Commons, while their Liberal and Independent counterparts have cut formal party ties.

"Conservative party senators continue to sit in the national caucus of the Conservative Party, led by Mr. Scheer, and he has made public statements of direction. He was directing his caucus to oppose the cannabis legislation through every fashion possible. And they did," Harder said, adding that Scheer's plans for the Senate should be "part of the debate" in the upcoming election.

"I believe Canadians would rather have [an independent Senate] than a partisan echo chamber of the partisan chamber, the House of Commons."

'This myth of non-partisanship'

Conservative Saskatchewan Sen. Denise Batters said Tory senators are honest about their political leanings and don't hide behind the "Independent" label that Trudeau-appointed senators have embraced.

She pointed to a CBC News analysis from 2017 that documented voting patterns that were largely in lockstep with Harder and the Liberal government.

"I think Sen. Harder, as always, is under this myth of non-partisanship. The Senate is a partisan political institution and has been for 150 years. It has always been less partisan than the House of Commons, but it is not nonpartisan. And I think we have served Canada well," Batters said in an interview.

She said the Conservative caucus takes offence at the government's insistence that the new picks are "merit-based."

"Partisanship is not a dirty word. There are people in our caucus who have partisan ties, yes, but they've also done a lot of great things in their lives."

Trudeau has relied on what has been described as an arm's-length appointments process to help him make his picks free of patronage. But as critics often note, some of his appointees still have ties to federal and provincial Liberal parties, or to the Pierre Elliott Trudeau Foundation. The foundation is named after the prime minister's late father, but it describes itself as an independent and nonpartisan charity.

Among the prime minister's most recent picks were a failed Liberal candidate, a former Liberal premier of Yukon and a former Liberal riding association member.

"With just a quick little Google search, you'll find many of these new appointees have Liberal ties," Batters said, adding the 'independent' appointments advisory board is comprised of people picked by the Trudeau government.

Peter Boehm, a former senior public servant and Trudeau's "sherpa" for the G7 presidency this year, was named to the Senate in the fall. He has said the prime minister offered him an Senate appointment on his last day working in the bureaucracy. Boehm later added he had also applied through the independent advisory board for Senate appointments — two years before Trudeau had made him the offer.

Despite the party or personal ties of some appointees, all of Trudeau's picks sit either as members of the Independent Senators Group (ISG) or as non-affiliated members of the chamber. They are not "whipped" to vote a certain way on any particular piece of legislation.

While ISG members often sponsor government legislation in the upper house, the ISG charter includes guarantees that members "have the right and the duty to act independently according to their personal sense of intellectual discernment and freedom of conscience."

'Equality of treatment'

Harder said he is anxiously awaiting changes to the Parliament of Canada Act, the law that broadly defines how the House of Commons and the Senate should operate. He's anticipating the changes will better secure his own position — he identifies as the government's "representative" rather than leader and is not a member of Trudeau's cabinet, unlike Senate leaders past — but also the place of the Independents he relies on to usher through government legislation.

"I'm hoping we can put amendments to the act that reflect the reality of the Senate today, and that is, we don't just have party-identified groups, we have other groups, and all groups should be treated equally," Harder said.

The amendments are expected early next year to ensure changes are enacted before the next election.

A spokesperson for Democratic Institutions Minister Karina Gould said the government is "open to making the required legislative changes, so that the roles and responsibilities of senators are reflective of their composition in the upper chamber."

While the Senate has managed to cope so far this parliamentary session with a series of sessional orders — temporary changes to the rules of the Senate — and friendly agreements between leadership teams, the current composition of the chamber is so distant from how the Senate has long been composed that it will require a serious rewrite of the act and the rules.

Traditionally, the chamber has been organized along two-party lines.

The Parliament of Canada Act only recognizes government and opposition leaders, deputy leaders and whips, and does not acknowledge, for example, leadership from third parties like the ISG.

That means leaders from those caucuses are paid less than their counterparts.

I'm worried they're going to try and do things to destroy the opposition in the Senate.- Conservative Sen. Denise Batters

It also means the small Senate Liberal caucus could find itself designated the Official Opposition if the Conservatives win the next election — leaving the Independent senators, who form a majority in the Senate after Trudeau's 49 appointments, in an awkward position.

The rules of the Senate still reserve for government and opposition leaders some important privileges — including considerably longer speaking times on bills — and, for the whips, other chamber functions such as deciding just how long the bells should ring before a vote is held.

Batters said she fears the changes could go beyond titles, and the Conservative caucus will do what it can to oppose them.

"I'm worried they're going to try and do things to destroy the opposition in the Senate," Batters said. "You need to have opposition voices and contrasting viewpoints. Otherwise it will become ... I don't know, a debating club. But that's not what this is. It's a House of Parliament."

When asked if he's trying to dismantle the opposition, Harder said that is not the government's stated intention.

"Conservatives continue to oppose, vigorously, government legislation. There [have] been no interests of theirs that have been circumscribed in any fashion and I would think that would continue," he said.

But the arms-length appointments process, Harder said, will continue under Trudeau — meaning that as Conservatives retire, they will be replaced by Independents, diminishing the presence of overtly Conservative legislators.

If Trudeau is re-elected next fall, the Conservative Senate caucus will lose 10 members to mandatory retirement over the next four years, reducing their caucus to 21 of the chamber's 105 seats.

As a result, Harder said, instead of expressly partisan pushback against a sitting government, opposition in the Senate could take a more legislative form that manifests itself through amendments to government bills passed by the Commons.

He noted, for example, that while the chamber amended just one government bill in the Harper years, 25 per cent of all government bills have been changed by the Senate this session.