October 24, 2013

Wallin won’t find due process in the Senate

Posted by WARREN PERLEY – Editor, BestStory.ca
Writing from Montreal

We heard the legal term “due process” used by Senator Pamela Wallin in making the case yesterday (October 23, 2013) as to why she should not be suspended from her Senate seat without pay.

Other than an acknowledgement from a handful of senators, such as fellow Conservative and friend Hugh Segal – himself a lawyer – the legal concept of “due process” is not likely to win support from most senators. They will likely vote next week in favour of suspending Wallin and fellow Conservative Senators Mike Duffy and Patrick Brazeau without pay and without health benefits for “gross negligence” in the “management” of “parliamentary resources.”

Earlier this year, an audit by the financial advisory firm Deloitte found irregularities in the travel and housing expense claims of Wallin, Duffy and Brazeau, all now the subjects of criminal investigations by the RCMP.

Brazeau, suspended with pay earlier this year after he was charged with sexual assault, has refused to repay $48,744 in expenses that auditors found questionable. All three have been forced to resign from the Conservative Party caucus.

The RCMP is also investigating a fourth senator, Liberal Mac Harb, who resigned last August after repaying the Senate $230,000 in expense claims deemed improper.

Wallin repaid more than $140,000, including interest, in September 2013. In February 2013, Duffy repaid the Senate $90,000, given to him by Prime Minister Stephen Harper’s then chief-of-staff Nigel Wright when Duffy said he did not have sufficient funds.

Senate suspensions would remain in force for the remainder of this parliamentary session which will last until the next general election, likely in 2015. So while in theory, the suspensions could be rescinded after the next election, that would not happen if by that point criminal charges had been laid by the Crown based on the RCMP investigations now taking place. If any senator were subsequently convicted on a criminal charge, he or she would be precluded from ever sitting in the Senate.

So the real question of criminal right or wrong as pertains to the Senate expense fiasco will play out in a court of law if and when criminal charges for fraud and/or breach of trust are laid against any of the three. When criminal charges are pending, “due process” must come into play with a presumption of innocence afforded to the accused unless and until such time as the Crown has proved its case beyond a reasonable doubt before a judge or a judge and jury.

Despite Wallin's assertion to the contrary in her October 23rd speech, the Senate is within its legal rights by virtue of Section 18 of the Constitution Act [1867] to censure a member who has violated rules of conduct, which could result in a suspension.

However, there is a question of whether the Senate has the right to suspend a member without pay which, according to Rob Walsh, former House of Commons Law Clerk, could be a violation of Section 59 of the Parliament of Canada Act.

Walsh said in an interview with the CBC’s Carole MacNeil on October 24, 2013 that Section 59 of the Parliament of Canada Act guarantees that Members of Parliament and senators must be paid as long as they are sitting in their respective bodies.

Walsh was of the opinion that the Senate can only withhold pay for senators who are repeatedly absent from the Upper Chamber. If a senator, such as Wallin, was forcibly prevented from sitting in the Upper Chamber, meaning she didn’t get paid, she could seek redress via a lawsuit against Public Works Canada, he said.

Putting aside for the moment the question of whether suspension of a senator without pay is legal in virtue of Section 59, we are left to wonder on a moral level whether these suspensions are any different than the kinds of sanctions imposed by professional bodies, such as medical boards or organizations governing sports, when individuals violate their rules of conduct?

Paying back the amounts deemed owed by Deloitte was a tacit admission on the parts of Wallin and Duffy that their expense claims were unjustified. Why should they now be shocked that the Senate is moving to make an example of them in a desperate attempt to prove to taxpayers that the institution is worthy of public trust?

Just as individuals in such situations are usually afforded a hearing before an internal committee in order to present their side, so did government Senate Leader Claude Carignan announce on October 17, 2013 that the three senators would each have an opportunity to defend themselves when the motions are debated, including the possibility of putting forward amendments to the motions for suspension.

Imagine a situation in private industry whereby an employee has been found to have misstated travel expenses repeatedly with the result of more money ending up in her or his pocket. When caught by the bookkeeper, the employee agrees to repay all the unjustified expenses with interest. In such a situation, could anyone blame the employer for terminating that employee or at least imposing a suspension without pay?

Make no mistake about it: fairness and balance should be part of all human relationships and is an integral part of our justice system, but “due process” is a sine qua non only in legal matters before an impartial and qualified judiciary.

The reason why Wallin’s argument in favour of due process is not going to win the day is because conceptually it is an oxymoron from the get-go to compare a highly partisan political body such as the Senate with a court of law.

In her address to the Senate on October 23, 2013, Wallin herself acknowledged that the Senate is “a chamber that has not demonstrated it is prepared to rise above party politics.”

But in the next breath she called for a Senate process that provides “the same procedural safeguards as a court of law.” She went on to say: “I want to make it very clear that I need to be sure that the protections afforded me are the same as a proceeding before a court….” including “the right to an open-minded jury.”

Her accusations against fellow Conservative senators Marjory LeBreton and Carolyn Stewart Olsen for allegedly leaking information to the media which besmirched her reputation just makes her attempt to obtain an impartial hearing in the Senate that much more difficult.

Wallin is certainly within her rights to seek redress for her perceived grievances before an impartial jury, but she has surely mistaken the venue where she will find such due process. It is not to be found in the Senate, but in a court of law.

If the senators finally do balk at passing the motions in favour of suspension, I suspect they will be motivated less by "due process" than by "self-interest" as they take to heart Wallin's warning that any one of them could be next on the list to be audited and suspended without pay for expense irregularities.

"Today my name is there," she told her colleagues in her Senate speech on October 23, 2013. "Tomorrow, next month or next year, it could just as easily be yours."