Even Supreme Court can't review our actions, say Senators

The unelected Senate has the privilege of being above review of even the Supreme Court, says a Senate in legal filing attempting to block Mike Duffy's lawsuit against the Senate, among others.

Jim Bronskill, The Canadian Press

OTTAWA — The Senate is urging the country's top court to dismiss Sen. Mike Duffy's challenge of a ruling that prevents him from suing the upper chamber for suspending him.

In a submission to the Supreme Court of Canada, lawyers for the Senate say the legislative body's actions are protected by the time-honoured bounds of parliamentary privilege.

They argue privilege plays a vital role in maintaining the separation of powers between the legislative, executive and judicial branches considered crucial to Canadian democracy.

The Supreme Court is slated to decide this morning whether to hear Duffy's appeal.

Duffy is seeking $7.8 million in damages from the Senate, RCMP and federal government following a high-profile investigation of his expense claims, which culminated in the Prince Edward Island senator's acquittal on 31 criminal charges in 2016.

Duffy was named to the Senate on the advice of then-prime minister Stephen Harper in 2008, but he left the Conservative caucus in May 2013 and now sits with the Independent Senators Group.

He was suspended in late 2013 without pay, a move that Duffy's lawyer Lawrence Greenspon argues was politically motivated.

Greenspon says Harper's office threatened Duffy that he would be kicked out of the Senate unless he admitted to inadvertently abusing his expense account and repaid $90,172 in housing expenses.

The Senate maintains it was exercising legitimate authority to discipline one of its own.

Following Duffy's acquittal, the Senate refused to reimburse his lost salary or cover his legal fees and demanded that he repay almost $17,000 in disputed expenses.

In late 2018, an Ontario court ruled the Senate's decision to suspend Duffy was protected by parliamentary privilege, a decision upheld on appeal, effectively blocking his lawsuit.

In their submission to the Supreme Court, Duffy's lawyers say he was the victim of arbitrary abuse of power by public officials, which is anathema to the rule of law.

"The Senate bluntly responds that its treatment of Senator Duffy is immune from scrutiny in the courts."

Duffy's submission contends that three key questions remain unanswered:

— To what extent do the fundamental Canadian constitutional principles of the rule of law limit the scope of the Senate's immunity in a case such as this?

— Does the Senate have statutory authority to remove a senator's salary, housing and per diem allowances for days residing away from his home province?

— Does the unelected Senate have exclusive jurisdiction to adjudicate charter claims against it?

"No privilege exists or is of sufficient scope to oust the jurisdiction of the courts or to immunize the Senate’s misconduct in this case," Duffy's lawyers argue.

The Senate, on the other hand, says these questions are settled, given that privilege shields parliamentary decisions about the use of resources by, and discipline of, members.

Duffy's argument amounts to an assertion that matters otherwise clearly protected by parliamentary privilege will lose that protection, and invite judicial review, if the actions are alleged to be sufficiently wrongful, the Senate submission says.

"This argument has been repeatedly considered and uniformly rejected by this Court and across other Commonwealth jurisdictions."

 

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