‘Double jeopardy’ not a factor in Senate suspensions: experts

OTTAWA — Whether or not the Senate votes to suspend senators Mike Duffy, Patrick Brazeau and Pamela Wallin will have no effect on any potential criminal proceedings, legal experts say.

That view goes contrary to what Liberal Sen. George Baker told reporters and the Senate itself this week.

“If these motions are passed, it will foreclose the police in any subsequent criminal proceeding,” Baker warned. “It’s a brilliant move legally by the Prime Minister’s Office because they would not then be called as witnesses in any criminal proceeding.”

Baker made his argument on the principle of “double jeopardy”: a legal defence that means a person cannot be tried twice on the same charges. Baker said that because the Senate is a judicial body, any ruling coming from the red chamber would prevent similar charges from being laid by a criminal court.

The Senate is considering suspending the three senators without pay over their expense claims. Claude Carignan, the government leader in the Senate, has referred to their actions as “gross negligence,” a term that is sometimes used in criminal proceedings.

But legal experts say it’s not so cut and dried.

“Regardless of what happens in the Senate, it has no bearing on whether or not a criminal offence could be prosecuted against these people,” said Toronto lawyer Jonathan Dawe, who specializes in criminal and constitutional law.

“Just because something is a judicial proceeding doesn’t mean that it serves as a trigger for double jeopardy. “

Dawe said the Senate is indeed a judicial body, but it cannot try people for criminal offences; only the courts can do that. And since the Senate can’t hand down a criminal conviction, there’s no double jeopardy case if a charge is then laid by a criminal court.

“It’s a technical area of law and I can see why someone might make a mistake, but my understanding is that the senator’s concerns are not well-founded,” Dawe said.

It’s a point echoed by nowretired House of Commons

“The parliamentary and judicial domains are distinct.”

ROB WALSH, COMMONS

CLERK

law clerk and parliamentary counsel Rob Walsh.

“If Senator Baker’s argument is that the Conservatives’ motion is designed to pre-empt criminal charges being laid against any of the three senators, based on the notion of double jeopardy, I would disagree,” he said.

“The parliamentary and the judicial domains are distinct and completely unrelated. Any jeopardy to which a senator might be put in a Senate proceeding is completely different from any jeopardy to which the senator would be put in a legal proceeding on the same matter. For this reason, there could not be any double jeopardy.”

However, because the Senate is a judicial body, the senators will have to be careful what they say in case they end up before a criminal court — because it’s an offence under the Criminal Code to give contradictory evidence in two different judicial proceedings, Dawe said.