A Conservative proposal to suspend three senators without pay and benefits is sparking a passionate debate inside the Red Chamber over the powers and independence of Parliament and just how to far go in exercising them.
On a strictly political level, the idea of suspending former Tories Mike Duffy, Pamela Wallin and Patrick Brazeau for their inappropriate expense claims might seem logical.
Canadians are upset with the Senate spending scandal, and MPs in particular are looking to appease voters.
But the Senate is a unique, sometimes unpredictable place – chocked with lawyers and the independent-minded who aren’t always guided by the vagaries of electoral politics. That sense of sovereignty is part of the upper chamber’s raison d’etre.
The debate is expected be fierce this week in the chamber when the motions are formally introduced, and could theoretically include interventions by Brazeau, Wallin and Duffy themselves. Wallin’s lawyer has already said he is looking at all options available to fight the move.
Independent Senator Anne Cools said she is deeply concerned that the Senate, with all of its constitutional powers, is getting into the area of unwarranted persecution.
“It’s a very serious matter because the Senate is being asked to go into judicial mode to make a judgment,” said Cools, who once sat as a Conservative and as a Liberal senator.
“It’s an extremely disturbing thing, and it’s a large and momentous action that is being asked for and I think that the public should understand that.”
At least three Liberal senators and one Conservative have publicly expressed opposition to the suspensions, going up against their own party leadership.
Central to the debate is the privilege of Parliament to make its own rules, a tenet of our Westminster-style system.
In 2009 and 2010, the British House of Lords suspended five peers – two for offering to change laws for money, and three over inappropriate expenses. But it was the first such suspensions in more than 300 years.
In Canada, only one other senator as been suspended without pay – absentee Liberal member Andrew Thompson in 1998. In that case, Thompson hadn’t actually broken a specific Senate rule because he hadn’t yet missed two consecutive sittings. Still, his colleagues found him contempt in the midst of intense public scrutiny of the upper chamber. He resigned shortly afterward, collecting his pension.
Political scientist and parliamentary expert Ned Franks said he suspects a legal challenge of a suspension would fail, based on the powers of the Senate. But he said he can’t be sure, because such issues haven’t been tested in court in recent years.
“By and large these provisions are used very rarely, and any government is cautious in using them because they set a precedent and you don’t want it to be easy for a majority in either House to remove a member they don’t like, just because they don’t like them,” said Franks, a professor emeritus at Queen’s University.
Liberal Senator George Baker told reporters last week he was concerned by creating such a precedent with the case before them.
“The Senate is above all rules in that they can set their own parameters for rules...what I’m saying is it’s unfair to do that, it’s very unfair and it’s only right that some senators would express the other opinion however unpopular it is to try and persuade the majority to go the other way,” Baker said.
The former law clerk of the House of Commons, Rob Walsh, took to Twitter to outline why he feels the Senate could suspend the trio, but not without pay. He said the pay is guaranteed by statute, the Parliament of Canada Act, “to ensure protection from political intimidation/control.”
“Cons. motion politically driven to win public favour for Cons Govt when Senate may be partly responsible for wrongdoing,” he tweeted.
“If motion is passed & implemented, no court action taken or any effective dissent voiced, it could become a precedent.”
Wallin’s lawyer Terrence O’Sullivan told The Canadian Press that a suspension would break the Senate’s own rules. He notes that in the case of senator charged with a criminal offence, which Wallin has not been, the Senate specifically emphasizes the presumption of innocence – as does the Charter of Rights and Freedoms.
“You cannot possibly interpret the section to mean that the presumption of innocence applies only when you’re charged...,” O’Sullivan said.
He added: “It’s a fundamental affront to Canadian democracy, it is backroom politics at its most transparent worst and its designed to create the impression of a clean slate for the Tory convention in Calgary next week.”