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 Greeks 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 his primary residence. They broke no legal code, but they broke an unspoken ethical one. Professor Farrow would surely compare their behaviour to that of a “zealous legal advocate”, for whom anything goes, so long as you don’t contravene the law or the Rules of Professional Conduct.
The law is no stranger to unwritten rules. After all, the entire basis of a common law system is that gaps in statute are not gaps in law. Unspoken rules for civilization are embedded in civilization itself, and it is up to judges to tease them out. In some areas of law, this principle itself is codified. The Income Tax Act contains a “General Anti-avoidance Rule”. It empowers the court to admonish a taxpayer thus: “strictly speaking, you didn’t break any rules, but you’re a weasel and what you did isn’t fair.” The Senate is about to do the same thing to three of its members.
If the Senate’s own rules don’t prevent the suspensions, what else could? There is no statute, constitutional or otherwise, governing the Senate’s ability to suspend its members. One of the founding principles of a bicameral Parliament is that each house is master of its own affairs. Any statute law must pass both houses of Parliament, and it for the Commons to vote on a bill regarding Senate rules would be abhorrent to that principle of mastery. The Rules of the Senate have the force of statute there. The document that creates the Senate, the Constitution Act, 1867, speaks only to eligibility for Senate appointment, and is silent on what happens once a Senator assumes their post.
Indeed, it appears that, on the matter of suspensions, the Senate of Canada truly is master of its domain. It has unlimited power to discipline its members, short of expelling them. In other words, by overriding its Rules, the Upper House is operating within the bounds of the law, but without regulation.
The irony is snicker-worthy. Like its very own Senators Brazeau, Duffy, Harb, Wallin, and the remaining undiscovered multitudes of housing allowance abusers, the Red Chamber now has only its judgment and ethics for guidance. The three Senators who faced suspension last week once ventured into that territory, and each made a bad decision. Now, the Chamber has made its own decision. We don’t know if it was right or wrong. That’s not our job; that’s the Honourable Senators’ job. Here’s hoping they were right.