Duffy lawsuit provides opportunity to make Senate accountable

Judge’s ruling could cut scope of senators’ privilege, protect staff, Daniel Tsai writes.

Ontario Superior Court Justice Sally Gomery has a pivotal opportunity to reform and make the Senate an accountable institution to Canadians. Appointed in July 2017, Justice Gomery is a former insurance and medical malpractice litigator and the daughter of retired Justice John Gomery, who led the commission into the Liberal expenses scandal that shone a spotlight on political payoffs and contributed to the federal Liberal Party’s defeat in 2006.

Sally Gomery now has a chance to make her own significant mark on a political institution with her ruling in Mike Duffy’s legal case against the Senate — by significantly advancing Senate reform and accountability to Canadians.

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 far broader implications for women and ensuring the Senate becomes accountable and transparent.

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, including where there is coercion or lack of due process.

As a result, this means there is no rule of law or judicial oversight in the Senate, since 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. This lack of oversight runs against basic constitutional law principles of the charter and the need for the rule of law and due process.

Lawyer for the Senate, Maxime Faille, argued that 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 to the law, allowing senators to run amok in all other cases. Canadians expect that the full set of laws should apply to the Senate, including sexual harassment, long rumoured to be a rampant problem on the Hill.

Parliamentary privilege fails to protect Senate staffers from abuse because it allows only for selfregulation to the cost of external oversight, due process, and accountability. Instead of having a judge, the auditor general, or some other neutral party regulating the Senate on all matters relating to discipline of members, the Senate can change any rules on a whim depending on which members control the committees or the Senate. It is an old boys’ club that protects the boys.

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. Sen. Peter Harder, who represents the governing Liberals in the Senate, noted that “powerful senators

... may protect their own allies, shelter the Senate from scrutiny or even, in an overtly partisan context, settle political scores.”

In the original criminal case involving Duffy, Justice Charles Vaillancourt found that there was a conspiracy against Duffy that was political in nature and amounted to extortion.

In frustration with the Senate, Sen. Marilou Mcphedran responded to the rampant allegations of sexual harassment by senators toward staffers by setting up a confidential email address for complaints, and even dedicated part of her office budget for legal fees for those who have been harassed. There have already been a few notable resignations, including former Conservative-turned independent senator Don Meredith who resigned due to a sexual relationship with a teenager and former Liberal senator Colin Kenny who was accused by a former staffer of sexual harassment but was cleared by an independent investigator.

Justice Gomery now has a chance to significantly reduce the scope of parliamentary privilege, so senators do not have carte blanche to behave badly and 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 to do the work of legislating, and earn back the people’s trust and respect.