Errol Mendes is a professor of constitutional and international law at the University of Ottawa and is editor-in-chief of the National Journal of Constitutional Law.
Mike Duffy may return to the Senate this week as a legislator with his full rights and privileges. He may even ask for repayment of his suspended pay, arguing that a judge ruled that he did nothing criminally wrong when acquitting him of 31 charges of fraud, breach of trust and bribery. No doubt many Canadians will be angered by the situation, and many will again call for the abolition of the Senate.
Those who feel this way may be forgetting that a country's most important institutions often need a real, or perceived scandal, to cleanse themselves.
This has happened repeatedly in Canada, including government departments, Crown corporations, the judiciary, cabinet ministers and even prime ministers. But there has never been much of a call to abolish these foundations of Canadian democracy. It should be the same when it comes to the Senate.
The Senate to which Mr. Duffy returns is, in a multitude of ways, much different from the chamber from which he was suspended. The Senate leadership, in particular those on the powerful internal economy committee, has greatly tightened expenditure and travel rules. In the wake of the damning Auditor-General's report, the Senate leadership, along with most senators, will also endorse a forthcoming independent oversight mechanism that they promise will be far more rigorous than anything seen in the House of Commons in terms of financial transparency and accountability.
Before the expenses scandal broke, the Senate was like a club for its members, too many of whom were appointed on the basis of political affiliation and fundraising abilities. Public monies of the Senate were used not only for the business of the upper house, but also for personal reasons that could be disguised as part of their legislative duties. In the wake of the Duffy trial, all senators need to rethink what the Senate is all about.
Senators have set up a special committee on the modernization of the Senate to examine how the chamber can reorient itself. I was invited to be one of its first witnesses; essentially, I told them not to listen to me, but to listen and follow their true purpose laid down by the Supreme Court in the 2014 Senate reference ruling that struck down reforms proposed by the Harper government without provincial consent.
The court ruled that the constitutional mandate of the Senate is to be "a complementary legislative body of sober second thought." In rejecting the federal government's attempt to reform the chamber without provincial consent, the top court also emphasized that the Senate represents the regions of Canada. The court's ruling means the Senate must not regard itself as equal to the Commons, yet it can't be simply an echo chamber or be dictated to by the partisan majority or minority government in the House.
As a legislative body of sober second thought that represents the regions, the Senate must also rise above political partisanship, which often does not take seriously the need for stringent review of legislation or the interests of regions not strongly represented by the party in power. The top court's ruling laid the groundwork for Prime Minister Justin Trudeau's decision to establish a process leading to more independent senators who do not feel constrained by party whips in their legislative duties.
By the end of this year, independent senators and those who have abandoned the constraints of party caucuses will form the majority in the 105-seat Senate. This will be almost a new parliamentary institution, one in which political and legislative power will be considerably more diffused. It will be critical that senators not only have their actual long-term residence in the province that they represent, but also that they are seen by the people of that province to truly represent them in Ottawa, rather than their own personal or party interests.
For this reason, the very loose rules of primary residence undermines the architecture of the modernized Senate. So, too, do the so-called strengthened rules that say senators only have to show that their driver's licence and health card comes from their province of appointment, and that their taxes are filed in the same province.
To improve the Senate's credibility, and build Canadians' trust in the revamped chamber, every senator must prove that the actual length of time they spend in their province reflects how they can be legitimately representing the interests of their constituents. Their physical assets, including property, should reflect and reinforce that representation.
The independent advisory board for Senate appointment provided one set of appropriate criteria: "The permanent residence of a nominee is where the person is ordinarily present and has made his or her home for a minimum period of two years leading up to the application. The nominee must provide documentation of residence in the province or territory." The only exception to the two-year requirement would be "where a nominee is temporarily absent from the province or territory … for reasons of employment or education but can provide satisfactory proof he or she intends to return to his or her permanent residence in the province or territory."
The Supreme Court, along with the revealing acquittal of Mr. Duffy, has given the Senate leadership their marching orders if they wish to complete the task of political and ethical redemption. What we are witnessing is a cleansing of a critical part of our constitutional democracy, which was part of the original compact of Canadian Confederation.