LP_468x60
ontario news watch
on-the-record-468x60-white
and-another-thing-468x60

One might suspect that when Senator Mike Duffy and his lawyer came up with the $7.8 million figure by which they planned to sue the Senate, the Government, and the RMCP, that they hoped it might scare the government into looking to settle.  After all, if they could get even half of that, they could reasonably claim that it would be a bargain to taxpayers that would save the years and millions of more dollars of litigation, but that would be a flawed calculation.  Rather, they can expect the Senate in particular to put up a fight because it's not just an issue about money it's the rights and privileges of Parliament itself that are at stake.

It cannot be understated that with this case, the Senate's existence as a self-governing body of parliament are being attacked, with yet another demand that the courts step in.  It's not the only one currently out there the NDP's attempt to take the House of Commons to court over the satellite offices issue remains in the air as well, and they haven't yet been told by the Federal Court that this is an issue of parliamentary privilege and they should go drop on their heads.  Likewise, Duffy and his lawyer are going to tempt those same fates, hoping that the courts will give them a sympathetic ear, the rights and privileges of parliament be damned.

Let's unpack some of these issues.  To start with, Duffy's suspension without pay was unrelated to his criminal trial, and happened before charges were even laid.  That makes the use of Justice Vaillancourt's ruling something of a red herring in Duffy's attempt to claim his being wronged.  The Senate was interested in protecting its reputation, and given the media attention and the obvious lapses in judgment when it came to Duffy's expenses, many of which did in fact contradict the established rules (regardless of Vaillancourt's opinion) were what prompted the Senate to exercise its ability to censure its own members.  Likewise, when they chose to claw back further expenses that were uncovered as part of the trial, it was under their self-governing abilities to do so.  They don't need a court's permission because in essence, Parliament is a court, and it's important that Parliament has the ability to set its own rules and to exercise them.  Remember that the separation of powers is a Thing, and crying to the courts is an invitation to trample on that separation.

It's also not really true that Duffy was denied all due process at the time of his suspension.  We can't deny that the mechanisms in place were imperfect (and in fact have been improved since witness the more rigorous process followed with now-former Senator Don Meredith's harassment allegations).  We also can't deny that the suspension motions were bullied through out of a sense of political expediency, but Duffy did get his right of reply to the Senate, and he made his case.  (It should also be noted that Senator Pamela Wallin was one who was not afforded that chance when the suspension motion was passed, and if anyone has a bone to pick with this process, it would be her).  Furthermore, Duffy had a later opportunity to have his case and the repayment demands reviewed by former Supreme Court Justice Ian Binnie with the appeal process that the Senate set up he declined to do so.

And this is where the Senate will start to want to dig in its heels, because there is an acute awareness that any backing down and diminution of their privileges will set a dangerous precedent going forward.  The Meredith situation is exactly an illustration of why privilege matters if they don't defend them, then they can't exercise them when necessary, and it is very necessary for them to have the ability to do things like oust one of their own when they break the established rules.  This is especially important because the Senate is a body that operates on tenure, where its members can't be removed by ordinary means as a form of protecting their institutional independence; enforcing those rules up to the point of expulsion has to come from within, which is why protecting their privileges matters.

Backing down with Duffy's lawsuit and demands for millions would not only set a bad precedent, it would limit their ability to censure the next senator who abuses their office budget, or their position and authority as either they found both Duffy and Meredith to have done.  Add to that, backing down would be a public relations nightmare for the Senate, which has been working to rebuild the trust of Canadians following the slow drip of spending "scandals," because it would mean that someone like Duffy would be able to get away with it, and furthermore, it would paint their disciplinary tools as being illegitimate, which is a very big problem for their ability to use them.  Add to that, saying that the decisions that parliament makes when it comes to its own governance would be subject to judicial review further strains the issue of separation of powers, which is a path that the Senate won't want to go down.

But, this having been said, I do see one very big potential danger down the road, which is the fact that there are some ten new appointments coming, and they'll all be independents, per the prime minister's promise.  Ten new members to the Independent Senators Group will give them the plurality in the chamber, and possible control over the Internal Economy Committee.  And it's possible that some of these members of the ISG will be more sympathetic to Duffy, who is now a member of the ISG, and that these newer senators won't be as keenly aware of the problems around precedent and privilege that they may be more willing to settle.  I think that would be a very big mistake, which would cause no end of problems down the road.  Let's hope that sanity prevails, and that Duffy's attempt to circumvent parliamentary privilege goes down in flames.

Photo Credit: CBC News

The views, opinions and positions expressed by columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of our publication.