Lawsuit could make Senate accountable
Justice Sally Gomery has a pivotal opportunity to reform and make the Senate an accountable institution to Canadians with her ruling in Mike Duffy’s legal case against the Senate.
While the Duffy case pertains to the senator’s acquittal of 31 charges of fraud and breach of trust and the Senate’s conduct in that case, it has broader implications.
At issue is the Senate’s position that the centuries-old convention of parliamentary privilege gives it the exclusive right to discipline itself and act as it wishes toward its own members, without any oversight from the judiciary or Canadian law.
The Senate can change its rules arbitrarily depending on which members control or can influence certain committees. That upends the principles of justice and democracy and runs against basic constitutional law principles of the Charter and the need for the rule of law and due process.
Maxime Faille, the lawyer for the Senate, has argued the Senate can only be checked by the courts in relation to criminal cases, but that privilege extends to the Senate in all other matters.
However, that jurisdiction of criminal cases is a narrow application of accountability. The Canadian public expects the full set of Canadian laws should apply to the Senate, including in circumstances of sexual harassment, long rumoured to be rampant.
Prime Minister Justin Trudeau has tried to reform the Senate by appointing independent senators to make it more accountable, but so far with little success.
In frustration with the Senate and its lack of accountability, Sen. Marilou McPhedran responded to the allegations of sexual harassment by Senate members toward staffers by setting up a confidential email address for sexual harassment complaints, and even dedicated part of her office budget for legal fees for those who have been harassed. McPhedran claims the problems of the Senate are related to Senate members disciplining each other.
Gomery now has a chance to significantly reduce the scope of parliamentary privilege, so senators do not have carte blanche to behave badly and cannot hide behind parliamentary privilege. She can also protect the rights of women.
By limiting parliamentary privilege to legislating and debating laws, the Senate can be held accountable as an institution to all Canadians, do the work of legislating, and earn back the people’s trust and respect. — Daniel Tsai is a lawyer, a former policy adviser in the federal government, and part-time professor at Humber Business School where he teaches law.