Motion to Suspend the Honourable Senator Patrick Brazeau, the Honourable Senator Michael Duffy and the Honourable Senator Pamela Wallin and Continue to Provide Life, Medical and Dental Insurance Coverage—Subsidiary MotionPublished on 5 November 2013 Hansard and Statements by Senator Claudette Tardif (retired), Joan Fraser (retired), Joseph Day, Marie-P. Charette-Poulin (retired), Roméo Dallaire (retired)
Hon. Marie-P. Charette-Poulin:
Honourable colleagues, as we all know, for the past few weeks our parliamentary institution has been dominating the headlines in print, electronic and social media. All of us have received many passionate messages from Canadians, not to mention the telephone calls to our offices and our homes, and the comments we hear every time we go out.
Like the rest of you, I would have preferred that we dominate the headlines for more constructive reasons than the current situation, but at least the controversy has given rise to an important debate in this chamber. Many senators have taken part in the debate on Senator Carignan’s motions from the beginning. The three motions were followed by a government motion moved by the Deputy Leader of the Government in the Senate, Senator Martin.
Several interventions are based on the Act of Parliament, on the Constitution of Canada, on the Canadian Charter of Rights and Freedoms and on the Criminal Code. Others asked important questions about the risk that these motions could interfere or be perceived as interfering with the RCMP investigations that started in June, 2013.
Therefore, I am just as uncomfortable with the government motion as with the three other ones. If these motions were adopted, the Senate could be accused of imposing severe punishment on three individuals while a process which is independent from the Senate, the RCMP investigation, was taking place, therefore interfering or obstructing justice.
The motions raise several questions, including these: are we not considered innocent until proven guilty in any administrative or judicial procedure? Could the motions have unforeseeable consequences? Will the motions to have our colleagues suspended without pay prevent them from having access to a legitimate defence, if need be? Is suspending a senator without pay against the present rules of the Senate? Are these motions contrary to the normal practices in Canadian public agencies and private businesses?
Honourable colleagues, I am worried about the unintended consequences of the motion before us, should it pass. And I am greatly troubled by the risk we run of interfering with the investigations undertaken by the RCMP, two of which the Senate has put into motion and one of which the RCMP initiated.
It is obvious by the debate in this chamber amongst some very fine legal minds, some very fine public policy minds and some very fine business minds that we really cannot be certain how this motion might affect potential future criminal proceedings. As some have pointed out, there is a real risk of crossing the line.
Unfortunately, this debate is being held in a highly toxic environment. We are at a point where we don’t trust each other, not even ourselves. And it is in this toxic environment that a comprehensive audit of all senators is being undertaken by an officer of Parliament, the Auditor General. Do we know whether or not the three senators who face potential suspension are going to be included in that process? If not, would it be because the office of the Auditor General does not wish to interfere with the RCMP investigation?
Honourable senators, please allow me to step back for a moment to recall, as some of you have, why each of us is here. Yes, let’s identify our common ground. Each and every parliamentarian was greatly honoured to be invited to sit in the Senate. Each arrived in good faith to serve Canada. Each is offering his or her substantive personal and professional experience to the institution, to the debates. Many arrived representing a region and/or a minority language group and/or a minority cultural group.
All are involved in the review of tabled legislation and the development of public policy, some with private bills and inquiries. Many have become involved as parliamentarians with issues that concern Canadians, including child soldiers, our veterans, young entrepreneurs, poverty, disadvantaged children, orphan diseases, the disappearance of Aboriginal women, consumer protection and interest fees in the finance industry, support for research and development, the arts, international trade, the environment in Northern Canada, bilateral and multilateral relations, Canadian content and broadcasting, amateur sports, professional sports and many, many more.
Keeping all of this in mind, I think we need to ask ourselves what is at risk here if we pass this motion. I believe we risk losing respect, self-respect, respect for each other and the respect of every Canadian. We risk jeopardizing the RCMP investigations. We risk being perceived as going against the rule of law, undermining the principles of democracy on which Parliament is based.
There has been considerable debate regarding the possibility that these motions could affect future criminal proceedings and the investigations currently being undertaken by the RCMP. We should respect the role and responsibilities of the RCMP as an important Canadian public institution. We, as members of the Senate, agreed to the independent review by the RCMP several weeks ago. We cannot rewind reality.
Honourable colleagues, as a member of the Ontario bar, I have taken an oath, and I take my oath very seriously. I would like to quote that oath, in part, to help you understand what governs my thinking with regards to this motion:
I shall not pervert the law to favour or prejudice anyone, but in all things I shall conduct myself honestly and with integrity and civility. I shall seek to ensure access to justice and access to legal services. I shall seek to improve the administration of justice. I shall champion the rule of law and safeguard the rights and freedoms of all persons. I shall strictly observe and uphold the ethical standards that govern my profession. All this I do swear or affirm to observe and perform to the best of my knowledge and ability.
Honourable colleagues, when I enter this chamber, I cannot leave my oath at the door. We have already set in motion a process by referring these matters to the RCMP, and I am confident that the RCMP will give them the serious consideration they deserve. I do not believe that we should be doing anything that might interfere or be perceived as interference with the RCMP investigations.
What we can and should be doing is putting in place measures that ensure this solemn institution is not placed in this kind of position again so that we may regain the respect of the Canadian public we serve — that this institution has a clear investigative process and a clear disciplinary process.
As the Speaker indicated in his ruling last week:
The debate has captured the attention of the Canadian public. It has provided information that was previously unknown or not well understood, helping us to better appreciate the work that remains to be done to improve our internal administrative operations.
Honourable senators, let us look on this as an opportunity to preserve the integrity and the dignity of this institution and of the parliamentary process.
Hon. Claudette Tardif:
Honourable senators, I rise to speak on the omnibus sanction motion before us, imposing additional sanctions on three senators.
This government measure essentially bundles in one motion the same elements of the three non-government motions proposed previously by Senator Carignan. Although the motion does not change the proposed sanctions, it does demonstrate some compassion by allowing the three senators, if they were suspended, to continue to receive the benefits of health, dental and life insurance.
That being said, this new government motion does not change the fact that we are still being asked to pass judgment without due process. It does not change the fact that three senators will not be granted their right to a fair hearing, their right to legal counsel and their right of cross-examination. It does not change the fact that this is not a process that ensures that the sanctions applied are fair and appropriate. And it does not change the fact that we are still awaiting the results of RCMP investigations.
Honourable senators, we need to uphold the fundamental principles of fairness and justice, as well as the dignity and reputation of the Senate.
Not only does this government motion not address this issue, but in a sense, in terms of procedural fairness, it is even more problematic than the three private motions proposed by Senator Carignan. What we have here are three different cases. How can we even pretend that we are treating each person fairly, on the merits of their respective case, if we have to pass judgment on one broad motion that does not make any distinction between the different facts and circumstances in play? How can we act as the gatekeepers of good laws in this country if we cannot ensure that the right to due process and the rule of law are put in place before we pass judgment on some of our own? If the Senate chooses to ignore the right of Canadian citizens to due process, what message does it send to Canadian citizens?
Canadians understand the need for due process. I have received many emails on this issue from fellow Canadians, and I would like to read one that reinforces that particular point:
Canadian justice is based upon one underlying principle: The presumption of innocence until proven guilty.
There is little question that there are irregularities in the financial accounts of the 3 Senators in this matter, but there are too many other questions in the process of the Committee hearings, and other political interference to justify immediate expulsion without due process and a thorough investigation.
You must limit any penalties or suspensions until you’ve positively confirmed their level of guilt, of which there appears to be varying degrees. A blanket solution for all is patently unfair and reactionary.
Honourable senators, this way of proceeding is un-Canadian. It is not in keeping with the basic principles and values that Canadians hold dear. Each of the senators has the right to be heard individually and in keeping with the basic rules of procedural fairness.
Honourable senators, given the seriousness and the impact of the proposed sanctions, it is not reasonable to make a decision on this issue without obtaining all the relevant information required to reach an informed decision.
The RCMP is currently investigating allegations of criminal conduct. In my opinion, honourable senators, it would be wise to await the outcome of these investigations to avoid compromising the work of police authorities by imposing sanctions. I will stress the principles that we hold dear and that are the very foundation of our institutions and our democratic and legal values, namely the rule of law, the presumption of innocence and respect for procedural safeguards, since what we do here today will have a significant impact on three individuals and on the reputation and dignity of this chamber. I am also focusing on these principles because the legitimacy of our entire chamber derives not only from the variety of interests it represents, but also the fairness and transparency of our legislative actions.
When there is abuse, we have the authority and the responsibility to take corrective disciplinary action, but we also have the responsibility to ensure that this action is based on facts that have been established and examined in a process that respects the rights inherent to the principles of justice and fairness.
We must seek an approach that will enable us to present all the relevant facts within a process that respects the rule of law, the presumption of innocence and the respect for procedural safeguards. These principles and the transparency they require help prevent any abuse of power. Otherwise, what is the point of having basic principles if we choose not to apply them when sensitive issues arise?
Is the rush to deal with the motion to suspend three senators in keeping with these principles? Is it really in keeping with the desire to maintain the dignity and the reputation of the Senate? Or to ensure that the highest standards and ethical principles are applied? Or is it a question of dealing with these matters as quickly as possible in order to quash a source of embarrassment for the government?
Honourable colleagues, Canadians are most concerned that due process be carried out, that the rule of law be allowed and that we respect the basic tenets of fundamental justice. I want to give voice to the many Canadians who are worried and who are seeking answers and who have taken the time to express their thoughts on this matter. These citizens have the right to be heard, and we are duty bound to listen. Let me quote further from emails that I have received:
In Canada, there is a presumption of innocence unless proven otherwise. I fear that if this presumption is not followed in the Senate, then not only will it set a precedent for all Senators, regardless of possible transgression, it will serve as a precedent for all Canadians to be found guilty before evidence to the contrary.
I am concerned about the speed at which the vote in the Senate is being hurried along. Please be the chamber of sober, second thought and give this issue the careful, honest deliberations that need to take place.
Please vote no to this dismissal without pay and vote for an open hearing as per this item of the Constitution: 15-4(5). For greater certainty, the Senate affirms the right of a Senator charged with a criminal offence to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
Another citizen writes:
I am writing to tell you that I am concerned with the government’s attempt to suspend 3 Senators who have yet to be charged and convicted with any offense. I am not expressing support for any questionable behavior on the part of these Senators, but I am disturbed by the appearance that the government is attempting to rid itself of a problem with no regard for the presumption of innocence until guilt is proven.
I think there are a lot of unanswered questions in this whole sorry mess and I am dubious about what many of the principles are saying.
I have been a supporter of this government but I am not certain that these actions reflect my values.
Finally, in another email, another citizen writes:
I have been paying close attention to the ‘scandal’ that has seized the Upper Chamber, and must confess that I am dismayed at the current proposal to suspend Senators Brazeau, Duffy and Wallin without due process. Although I do not condone their alleged improprieties for one second, I have even more serious concerns about finding them guilty solely on the basis of reasonable cause, and at the behest of the Prime Minister. Surely you have a moral obligation, if not a legal requirement, to remain independent from blatant political interference and to demonstrate a sense of wisdom born from ‘sober second reflection’ in the manner in which you proceed. Even more seriously, you have a duty to uphold and protect the most basic tenet of fundamental justice — the presumption of innocence until proven guilty.
I read a few excerpts from some emails I have received, and I have received many other similar emails. I want to point out that many Canadians, and many senators, believe that there remain too many unanswered questions for us to decide whether the disciplinary measures we are debating are justified. Not so long ago, the government told us that because the disputed expenses had been repaid by some senators, there was no longer any wrongdoing to sanction, the matter was resolved and it was time to move on to other things. It told us that one of the senators in question was even showing some leadership and that the Prime Minister himself had reviewed another senator’s expenses and did not have a problem with them.
After changing its message numerous times, after trying to shift the attention to other matters in order to make this go away, after several apparent changes in strategy, different versions of the facts and many rumours, today the government is trying to tell us that it is finally acknowledging the mess in which it has become mired by introducing its own motion.
As I said earlier, if the government seriously wants to resolve this matter fairly and in a reasonable period of time, the amendment proposed by Senator Cowan seems to me to make a lot of sense.
Honourable senators, we must ensure that we always respect these basic principles of fairness and equity.
Hon. Joseph A. Day:
Thank you for that clarification. It’s another one of those special features of this particular debate that has been ongoing now for two and a half weeks, three weeks, but the point was made earlier on that we, in this particular motion, just started this last Thursday. That’s the first point that I would like to make. There is no reason why the Leader of the Government in the Senate should assume that all of the debate on the three previous motions that were non-government motions, those three motions that we had debate on over a considerable period of time, there’s no reason to assume in the future that those debates would be looked upon in reviewing the Senate’s deliberation in this particular motion. That is the reason I believe that closure is wrong with respect to this and it was a decision that we should not have made.
I agree with my honourable colleague Senator Wallace that there are too many issues that need to be aired in this chamber. We’ve heard them with respect to the three motions, but those three motions historically, if somebody looks back on this, aren’t going to say, well, there was a motion here with three parts to it but there were also three other motions, and we go back and read the debate on those. That’s not going to happen.
So I believe, honourable senators, that if any of us have any point that we would like to make, we shouldn’t say, ‘Well, I’ve already made the point’ — like Senator Nolin who said, ‘I’m going to give you a resumé of what I have already said,’ because he understands that that’s all that’s going to be looked at with respect to this particular motion that’s before us that we now have closure on and we’re into the six-hour debate.
Honourable senators, what I’ve tried to do is listen to all of the debate and I’m always looking for common themes, looking for an opportunity for some possibility to reach a consensus on some of the issues. I have to say that there are many points that have been made on both sides of the chamber that I agree wholly with. I agree with the points that have been made, and Senator Mockler just made a number of points that I agree with. The problem is, I don’t agree with the conclusion that he came to based on an analysis of those points, and I think that’s the difficulty, honourable senators. We can all talk principle, but, when you apply the principle to the facts of the situation, then we come to different conclusions.
None of us, I think, is trying to be overly partisan in relation to what is being discussed here. We all recognize the tremendous importance to certain individuals, the three honourable senators who are named in this motion.
We all understand the impact of that, but we also understand the obligation that we have. We’re being asked, in effect, to be a judge, each of us. Judge the facts and come to a conclusion when you vote. It may be that you vote one third here and one third there and one third there, and we don’t know what’s going to happen, but when you come to vote, you have to be satisfied that you’ve heard enough to convince you on how to vote.
I suggest to you, honourable senators, that this chamber, a political debating chamber, is not the best forum to deal with the entire issue. This is the forum that will make the final decision, but we should, in my submission, take advice and recommendations from a smaller group, being Internal Economy, which is what we did in the spring. Internal Economy came in with a report and made certain recommendations. I will go to those recommendations that were considered by this chamber and voted on, but that’s not the case with respect to this particular motion. That, I suggest, is part of the problem that we have here.
We have a precedent to look at in Senator Lavigne’s case. In that particular case, Internal Economy created a subcommittee chaired by Senator Goldstein. Three senators from Internal Economy sat on that committee. Senator Lavigne was entitled to know what case he had to meet. He was entitled to be represented by legal counsel. He was entitled to question those who were bringing evidence against him. He was entitled to put forward his own rebuttal evidence to that. The committee of three then considered all of the evidence and reported back to Internal Economy with their findings and their recommendations. Internal Economy then reported back to this chamber.
That, I submit to you, is the process that would help us get to this bottom of this. You cannot come to a decision on how to vote if you haven’t heard all of the evidence and if that evidence hasn’t been properly tested. We’ve seen examples of both of those situations. There’s a little bit of evidence that comes out, and then a little bit more that you might be interested in. Here’s a little bit more, after you’ve already made a partial, at least, decision based on what you had heard previously.
There are comments being made with respect to statements that somebody else made, but we haven’t had that tested. We haven’t heard from the person who is supposed to have led these honourable senators to act in the manner in which they acted. We’ve seen a document filed, and we haven’t tested that document, on what they were entitled to do and what they weren’t entitled to do. That has to be tested, and it can’t be tested in this forum.
That’s what I’m suggesting to you, honourable senators. The issue that has to be looked at has to be looked at in an atmosphere and in a tribunal, if Senator Nolin doesn’t like the term ‘due process,’ where fundamental justice is being followed. Fundamental justice includes all of those elements of due process, of representation, of knowing what the case is against you and of being able to answer that case. All of that is included in the concept of fundamental justice, which applies to every administrative tribunal.
Senator Baker and Senator Joyal have made the point that we are expected to have a process in place to ensure that fundamental justice is there. I agree with that, and I would suggest that when this matter is referred back to Internal Economy, Internal Economy should create a subcommittee, and the rules should be defined before any honourable senator is required to appear before that committee. That honourable senator must know what case is being alleged. A representative from Deloitte should be there to will tell what they found, and there should be an opportunity to answer that. If there were factors that resulted in an honourable senator doing something, then those factors must be looked at from the point of view of the severity of the sanction. That goes to the weight. We can’t excuse someone breaking the rules when that person knew they were breaking the rules, but, if there were other factors that influenced the manner in which those rules were broken, then that goes to the sanction.
All we have in this motion is the total hammer, everything. There’s no opportunity for us in this debate to deal with possible reductions in what the sanctions might be. Why would we have this sanction instead of the sanctions that existed in the spring? There were sanctions from each of these studies by Deloitte. Internal Economy then reported back here with recommendations. The only one that wasn’t debated is Senator Wallin because it was during the summer break and then prorogation, so those sanctions that appear in Senator Wallin’s were never debated in this chamber, but the others were debated and accepted.
The question of what has occurred since those sanctions were looked at in this chamber, on the recommendation of Internal Economy, is a question that hasn’t been answered. Why the new sanctions? Why the additional sanctions? Why all the way? Why do you want to do everything, take away all privileges, all pay and allowances, no office, when we haven’t had a chance to hear the case that’s being put against them that has resulted in these additional sanctions being applied?
Honourable senators, that in itself should be a reason why we would want to think very seriously about voting against this particular motion and voting for Senator Cowan’s motion to send this to the Rules Committee. Rules could create a subcommittee. Let’s do this properly. Let’s do it right.
In the meantime, what is our responsibility? Our responsibility in this chamber is to protect the public and to protect the institution. We may have to take certain interim steps to do that. Senator Dagenais talked about the administrative steps that are taken with respect to police. Administrative steps are taken in law societies to protect the clients during the investigation. If there are possibilities of criminal activity, then those protective administrative steps are taken separate from whatever investigation is going on criminally. There are two separate processes. We remain seized in this chamber of the administrative aspect while the police do their investigation, and then the Crown prosecutor decides whether they should proceed with a case in the criminal courts. There are different tests. One is beyond a reasonable doubt; the other is a balance of probabilities. There are different things that we’re trying to protect. It is not unheard of to have the two moving parallel, but the administrative step must not be such that it interferes with the criminal investigation.
I have read several times the comments that have been made in the past, and I was very disappointed to hear the honourable Leader of the Government in the Senate say that this has all been partisan and no thought has been given to it. I know that this is weighing very heavily on all honourable senators. We wake up nights thinking about this. We don’t want to do anything that jeopardizes either process.
What concerned me when I read the comments by the Honourable Leader of the Government in the Senate on October 22 was the last paragraph:
This is not our money; it is the taxpayers’ money. We must be careful. Therefore, I respectfully submit that showing this degree of carelessness, of recklessness, amounts to gross negligence in my opinion, and we cannot allow it to go unpunished.
Honourable senators, saying ‘… we cannot allow it to go unpunished’ is getting precariously close to a penal sanction. As soon as we move into penal sanctions, we’re getting away from our role as an administrative body, and that is the point that are our colleague Senator Baker has been making. I am very concerned about the wording that I saw when rereading that particular passage from the Honourable Leader of the Government in the Senate.
Honourable senators, we can make many different points, but the test from a criminal point of view is ‘beyond a reasonable doubt’ and it is with respect to fraud and breach of trust, and that is not the test that we’re applying here. That’s not what we’re required to do and we shouldn’t be doing that. We shouldn’t be thinking about how we can punish somebody. That will be done in a proper manner through another process.
Honourable senators will see the words ‘gross negligence’ in here. That’s another area I wanted to touch on because there has been no finding in Internal Economy and no finding by the subcommittee on the term ‘gross negligence.’
I wonder, honourable senators, if I might have five minutes to finish on some of these points.
Hon. Senators: Agreed.
Senator Day: I hope that they’re helpful. They’ve come from a lot of listening and trying to analyze the comments and concerns of many honourable senators.
Throwing ‘gross negligence’ into a motion with no basis is another reason this motion is flawed. What did the Honour Leader of the Government in the Senate say? He said, ‘… amounts to gross negligence in my opinion.’ Well, in my opinion there is not gross negligence. How does that help you?
We need to go through a process that will help define ‘gross negligence’ and the factors that might lead us to a finding of gross negligence. If we don’t go through that process, and we haven’t, then we can’t vote on a motion that’s based on that, and that’s what we’re being asked to do. That’s another point that has caused me a lot of concern.
I’ve made the point that each of these reports deals with a different subject matter. In respect of Senator Wallin, Deloitte’s report is a review of Senator Wallin’s travel expenses and living allowance claims. That’s what Deloitte was asked to look into on that one. If you look at Senator Duffy’s, it’s the examination of Senator Duffy’s primary and secondary residence status. They are totally different analyses. What are we doing putting all of these into the same arguments and saying they should have the same sanctions?
The second point with respect to these reports by Deloitte is that they were done by an accountant, and you don’t ask an accountant to lead you through the maze of legal challenges that may exist. The committee that looks at each of these senators separately should look at what Deloitte found, should look at all the other evidence, but should also have legal guidance to avoid stepping on one of the other processes that might be in existence. We shouldn’t be relying on Deloitte for any of these legal or quasi-legal arguments that are being developed.
The final point I wanted to make is this: I had a bundle of emails that I had seen, and many of us have had those, but what is clear from these emails is that the public, when they talk about due process and say we shouldn’t do anything until there is a criminal investigation and a criminal sanction, they don’t understand that there are two types of due process. There is one on the administrative side and one on the criminal side. I’m not going to read the public’s comments back to you because I’m not convinced that the media has properly depicted the nuances, the fine differences that exist here, and I’m not certain all of us do. I’m not certain I understand the differences that exist here and the important tests that must be applied.
That’s why I believe that this matter, with respect to each of the honourable senators, should be referred back to one of our committees. It should go to a special committee where they recognize their responsibilities and report back with a recommendation. We can then vote with confidence. We can ask questions and make a decision such that we can all feel satisfied we’ve done the very best we could under the circumstances.
Hon. Lillian Eva Dyck:
It’s getting late in the evening. The last two weeks have been absolutely stunning. We’re saying we’re holding up government business, but we are learning; I am learning so much about the Senate, about parliamentary functions, about principles of fairness and justice. I think there could be no better training for new senators, and I still consider myself somewhat new, even though I’ve been here eight years.
I’m going to quote a young man who worked for CBC for a short time. His name is Wab Kinew. You may have watched him on television. He was the producer of 8th Fire. He was ve