The Senate debate over the past several weeks was one of the most demanding, emotionally wearing, frustrating and best debates that I have witnessed in my time in the Senate. There have been many excellent debates in that time, serious and important debates. (And that is one of the reasons why we have to televise the proceedings of the Senate Chamber.)
This one was a special debate because the stakes were so high, the issues so complex and all of them were argued extremely well by various Senators:
1. There is the basic issue of everyone's frustration and anger with Senators who would have made inappropriate claims, and even after paying them back had received no apparent additional punishment. I received much input on people's anger about that and certainly share it. Clearly, that side of the issue had to be dealt with.
2. But at the same time, and I received much input on this too, whatever punishment was given these Senators had to be done properly. The question of rule of law and due process of the law loomed large in this debate.
3. And, all of this had to be considered in the human context. The very lives of the three Senators in question—Brazeau, Duffy and Wallin—were literally in our hands. Suspension without pay may well mean almost no chance of earning a livelihood.
No Senators were opposed to punishment. The government Leader in the Senate, the Leader of the Conservative Senators, moved the motion to suspend all three without pay until the next election or prorogation for some other reason. At the time that the Senators had been forced to pay back the amounts inappropriately claimed, the Liberal Leader in the Senate made it very clear that it was not enough that each of the three simply pay back the amounts without there being some form of actual punishment or sanction against them. So, punishment, yes or no, was not the issue.
However, all of the Liberal Senators, except one, and several Conservative Senators throughout the ensuing debate and votes made it clear that while they were in favour of punishing the three, there were serious questions about how that should be done. I was in this group. I was very concerned about a number of issues:
1. The basis for the motion to suspend them without pay or benefits was that in each case an external audit found questions about their claims. It was on the basis of these findings that they were made to reimburse the amount they claimed. However, the suspensions being proposed in the motion constituted a new level of severity of punishment, some would argue on the level of criminal severity. Surely, there would have to be a higher bar for the review and verification of the information than auditors' reports where the accused never had the chance to cross-examine the auditors or question their accusers with the aid of counsel.
2. The Senate is a judicial process. The argument was made by one Liberal Senator with strong legal and constitutional experience that once the Senate rendered a "verdict" therefore, subsequent criminal action might be ruled "double jeopardy" and disallowed by the courts. At least two of the three are currently under RCMP investigation. There is much precedent in other legislative jurisdictions that legislative action like the Senate suspense motion and debate were put on hold whenever criminal investigations were underway. Why take the risk that the Senate proceeding would rule out criminal action later when we could wait for that to finish and then act without that risk and with more information if need be?
3. Many argued that if this were the private sector, there would be no question but that they would be fired. However, in the private sector, the fired employee has recourse to the courts to sue for wrongful dismissal. There is no appeal to what the Senate decides in a case like this. Moreover, at least one of the Senators in question argued that they were told by their leadership that they were doing nothing wrong. It is doubtful that the employee in the private sector would be fired if they had been told by their boss that they were doing nothing wrong.
4. How is it that three Senators who had been accused of three different infractions should all receive the same penalty? While there were some similarities in their cases, the cases are actually substantially different. They involved vastly different sums of money. Two were accused of not living in the provinces they represent while one was not. Two were accused of living in Ottawa and claiming for housing allowance while there but the third was not. One was accused of living in Toronto and not in the province which she represented but did not live in Ottawa.
In any event, the Liberal Leader in the Senate, Senator Cowan, moved an amendment that we refer these questions to the Senate Rules Committee. There is precedent for this kind of referral in other legislatures around the world and in fact in our own Senate.
For me, that was the reasonable, fair and high road solution to a quagmire of problems. It is the very essence and soul of the Senate to protect rights. If we did not do that correctly, judgement of us would not be based upon the behaviour of individual Senators, but on the basis of the action of the Senate itself. In the latter, the stakes were even much higher.
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