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editorial
a. Osgoode Hall Law School, 0014G
York University
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monday - october 28 - 2013
Senators behaving badly
Sam Michaels gets right down to work this
week on the page opposite, taking three
Senators to task for their well-publicized
abuse of reimbursement privileges, and
Senator Wallin in particular for her lawyer’s subsequent lack of tact in comments he
made about a Senate motion that would suspend Wallin’s privileges of office. Michaels,
in the best sort of Obiter Dicta way, exemplifies the public outrage that has inhabited the
pages of Canada’s other upstanding newspapers since the tip of the Senate malfeasance
iceberg (which may or may not be an appropriate metaphor, depending on your subjective evaluation of Senator Duffy’s exact size)
came crashing into Canada’s ship of state
last year. As Michaels puts it: “the public is
largely in agreement that the suspensions
are justified.” Quite right.
Nonetheless, populism alone is rarely a good
reason to do anything, which is why we have
a constitution and courts to interpret it.
They prevent what the Gre eks called ochlocracy, which John Adams and later Tocqueville idiomatically translated to “tyranny
of the majority.” Thus, the faithful Obiter
would be remiss if it did not fully explore
the legal nature of the proposed suspensions
and find out who is really behaving badly:
is it the three sinful Senators, or the angry
mob of the majority? In fact, we may be able
to resolve the court challenge Michaels predicts right here, right now. If we’re right,
you heard it here first.
The Rules of the Senate dictate when a Senator may be suspended. Subrule 15-2(1) provides that: “The Senate may order a leave
of absence for or the suspension of a Senator where, in its judgment, there is sufficient cause.” The breadth of this power may
be restricted by subrule 15-2(2) which, in
turn, provides: “When a leave of absence is
granted, it is solely to protect the dignity
and reputation of the Senate and public trust
and confidence in Parliament.” The trouble with this is that the difference (if any)
between leaves of absence and suspensions
is unclear. This means that subrule (2) may
only apply to leaves of absence, leaving the
Senate’s power to suspend one of its members unencumbered by anything but a subjective determination of “sufficient cause.”
We combed the archives of Speaker’s Rulings from 1984 to the present, and the rule
has never been interpreted. There is no
equivalent rule in the House of Commons,
though sitting MPs can be expelled from
their seats. This has only happened four
times. Louis Riel was expelled from his
seat on motion in 1874 following a murder
conviction. The writ dropped on a by-election to fill the seat, and the good people of
Provencher re-elected the embattled Mr.
Riel. Being on the lam, Mr. Riel did not
attend in his place in Parliament, and the
House expelled him a second time in 1875
for “outlawry.” Ha.
The House expelled Thomas McGreevy in
1891 following allegations of corruption
from another member, but they were never
proven. Quebec West re-elected McGreevy
in a by-election as well, and he assumed his
seat without incident.
The final incident was in 1947, when Fred
Rose, the member for Cartier, was convicted
of spying for the Soviet Union and imprisoned. The House expelled him.
However, interesting though these stories are, the point is moot. Senators cannot
expel each other, since the Constitution provides that they are appointed for life up to
age 75 (though the Sovereign may be able
to remove them). Furthermore, the debate
about what grounds are necessary for a suspension is also moot. The text of the pro
forma motions to suspend Senators Brazeau,
Duffy, and Wallin begins with the words
“notwithstanding any usual practice or provision of the Rules”. This is a significant
detail.
Senator Carignan, the Leader of the Government in the Senate, and the Senator who
drafted the suspension motions, wanted to
make sure that no existing rule stood in
their way. Simply put, the suspension of the
three offending Senators, in the eyes of Senator Carignan and the Government, is more
important than the rules.
Perhaps this is appropriate. After all, the
harm to the dignity of the Upper Chamber
resulting from the “expenses scandal” isn’t
about rules at all. Senators Brazeau, Duffy,
and Wallin, along with Senator Harb, who
retired in August after repaying a large
sum of ill-gotten expense claims, didn’t
really break any rules; they abused them.
The expense claim rules simply did not contemplate the possibility of an Honourable
Senator claiming a seldom-used cottage as
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