Lawyers for the Senate warned of dire consequences for Canada’s democracy Wednesday as they laid out their case for why Sen. Mike Duffy shouldn’t be allowed to sue the upper chamber over his dramatic and protracted suspension without pay five years ago.
Allowing Duffy to target the Senate with his $7.8-million lawsuit would obliterate the protective walls aimed at keeping the courts and Parliament separate, they argued. They cited parliamentary privilege – a centuries-old right designed to protect legislators from legal consequence in the course of doing their jobs.
Senate lawyer Maxime Faille told the court that while parliamentary privilege may appear arcane, it cannot be taken for granted when looking at “recent events around the globe, near and far.”
Chipping away at that right could potentially unleash a flood of cases that would result in an unprecedented tearing down of the separation of powers between the government and the courts, Faille said.
The portion of the lawsuit against the Senate hinges on Duffy’s arguments that senators acted unconstitutionally and violated his charter rights when they decided to suspend him without pay in 2013 over questioned expense claims.
Faille said the Senate, like the House of Commons, has the right to discipline its members free from judicial review, even if their actions appear repugnant.
“The Senate may be wrong, the Senate may be incorrect, but that is a matter for the Senate to determine,” he said.
“If we are to sort of crack open this exception – but if they really did it for a really hare-brained reason – then we have eviscerated parliamentary privilege and the courts would be sitting in regular review of (parliamentary) discipline actions.”
If the court agrees, Duffy’s suit would proceed only against the federal government over the actions of the RCMP during the investigation.
Unlike Duffy’s high-profile criminal trial, the arguments made in the first of two days of hearings on the Senate’s request happened in a sparse courtroom. Federal lawyers representing the government and RCMP sat on one side of the room. Duffy sat opposite, with his criminal trial lawyer, Donald Bayne, one row ahead.
Duffy is seeking damages from the Senate and the Mounties in the wake of the high-profile investigation and suspension surrounding his expense claims, an explosive political scandal that plagued then prime minister Stephen Harper’s government, culminating in Duffy’s acquittal on 31 charges in April 2016.
He filed his claim last August, claiming “an unprecedented abuse of power” when senators voted to suspend him without pay in November 2013 before any criminal charges were filed.
Senators who supported Duffy’s suspension stuck fast to the argument that the Senate should be allowed to govern its internal affairs and dole out administrative penalties without fear of judicial sanction.
Indeed, Faille said the court lacks any jurisdiction to review the Senate’s decision, order the Senate to pay any money to Duffy, or make a value judgment on whether the upper chamber acted appropriately.
Lawrence Greenspon, another of Duffy’s lawyers, told the court later Wednesday the Senate waived its right to privilege when it turned to outside auditors and the RCMP to review Duffy’s spending. He argued the Senate now “seeks to stand privilege on its head” in order to quash Duffy’s lawsuit.
Greenspon is expected to resume his arguments Thursday.