Law­suit could make Se­nate ac­count­able

The Beacon Herald - - OPINION -

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.

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