Hugh Segal was a Conservative senator for nine years, appointed by prime minister Paul Martin in 2005. He is now the fifth master of Massey College and a senior fellow at the Munk School of Global Affairs at the University of Toronto.
Spending scandals, large or small, are at some level endemic to the political process in democracies in which opposing political parties, the news media and the bureaucracy compete for influence and impact.
Great Britain experienced this during the Daily Telegraph-launched exposé on spending by members of the House of Commons and House of Lords. The NDP government under Roy Romanow saw the destruction of the province's Conservative Party based on allegations legislative caucus funds were misspent. Prime Minister Stephen Harper's political progress was helped immeasurably by the sponsorship scandal that emerged under the Liberal government of Jean Chrétien. This kind of opposition thematic is a regular part of the democratic narrative throughout Canadian history, no matter who is in power.
This context helps to put the Senate expense events into perspective: about $180-million in expenditures over a two-year period were audited, and problem expenses amounted to less than $1-million (not insignificant, but small in percentage); no problems were encountered with most of the current or retired senators; 21 of 116 senators are alleged to have made errors or lacked documents in expense submissions; the cases of nine other current and former senators have been recommended for referral to the RCMP.
Beginning in 2012, the Senate began tightening its rules (on three separate occasions) and it continues this week. This might be read as admission by the Senate that previous rules were inadequate or too vague or imprecise to be broken or enforced. This opaqueness has come up at the trial of Senator Mike Duffy, and might emerge in any future prosecutions. Without commenting on the trial, where guilt or innocence will be determined by the judge, further criminal charges based on rules that have been amended, re-amended, rewritten and clarified might prove problematic. I do not doubt the best efforts and good faith of police officers and Crown attorneys involved. But criminality is about violation of the law and the legitimate evidentiary proof that criminality occurred. Vague or imprecise rules, or disorganization and confusion, are not yet Criminal Code offences. However, senators who knowingly sought to defraud the taxpayer or line their own pockets should absolutely face any and all consequences.
Several things need to happen for the Senate, and the country, to move ahead:
First, external inspectors and advance expense approvals from a body separate from the Senate or its committees should be instituted, as recommended by Auditor-General Michael Ferguson. (This was the path the U.K. chose after its parliamentary expense problems.)
Second, the auditor-general should, by statute, do a regular a normal transactional audit of both the Senate and the House of Commons, as is done in government departments.
Third, the government leader in the Senate, Claude Carignan, should resign; he twice moved motions of suspension on three senators – a clear violation of due process, presumption of innocence and the principles of Magna Carta. These suspensions, unjustified then and odious today, were bad advice to the Senate (he stated that he drafted them himself) and of huge difficulty now (which he recently affirmed in defence of the creation of an independent arbiter). His suspension motions are the existing precedent on how the Senate might deal with those cases now referred to the RCMP – and the Senate cannot again play judge, jury and executioner. Mr. Carignan would do his government, party and the Senate a huge service by stepping aside.
Fourth, the government should bring in a law to hold a referendum on abolishing the Senate to coincide with election day in October. If Canadians in every province support abolition, first ministers would be hard-pressed to block a constitutional amendment – remembering that federal-provincial unanimity is required to abolish the upper chamber. If a national and provincial majority were not achieved, at least the Senate would experience its first shred of democratic legitimacy from the people themselves.
Show trials, public lynchings and the destruction of reputations of those who may have made honest mistakes because of unclear Senate rules or differences in interpretation may play to the bloodlust of some. But they do nothing for public probity, respect for taxpayer dollars or the issue of legitimacy of our parliamentary institutions.
In the long term, a yes-or-no referendum giving Canadians a choice about what to do with the Senate and, in the short term, a new external framework for approval of legitimate Senate expenses, will move the country ahead most effectively.