Senate suspensions and parliamentary privilege

Senator Pamela Wallin sat quietly at her desk as her colleagues in the Red Chamber stood one at a time, voting to suspend her without pay from the job to which she was appointed in 2009.

Unlike another embattled colleague, Senator Patrick Brazeau, who had made an 11th-hour pitch to save his job, Wallin kept to herself, seated next to Senator Mike Duffy's empty desk, until her fate was decided. She then collected her things, exchanged a few words with fellow Senator Hugh Segal, and left.

But Wallin's last stand may be yet to come in a courtroom.

And as the senator for Saskatchewan readies her case, Parliament's former top legal advisor says the government might make the case for immunity.

Rob Walsh, who served as the Parliamentary law clerk for more than a decade, says the Senate may have erred when they forged ahead with garnishing pay from the three suspended senators, and that they could face a tough legal fight as a result.

The senators were suspended following a report from the Red Chamber's own Board of Internal Economy, which found they abused their travel and housing allowances. And in early November, as some senators cried that the treatment contravened the Canadian Charter of Rights and Freedoms, the Constitution, the Magna Carta, natural law and everything in-between, the Senate voted to remove the three without pay. Tony Clement, president of the Treasury Board, is even vowing to go after their pensions.

But Wallin and her lawyer say they are analyzing their legal options. And as soon as she misses her first paycheque, she could have a case to make that, under the government's own legislation, it owes her a salary.

Representing Wallin is Terrence O'Sullivan, a partner with Lax O'Sullivan Scott Lisus LLP, in Toronto. He did not return requests for comment.

The motion that ousted the three read that, "in order to protect the dignity and reputation of the Senate and public trust and confidence in Parliament," they would be suspended without pay.

On the face of it, the Senate is free to do so. It enjoys parliamentary privilege, which allows it the unique ability to administer its own affairs, including discipline of its members, without interference of the courts.

But Walsh says that privilege is not all encompassing. The Senate cannot just ignore legislation that binds it, like the Parliament of Canada Act, which mandates that senators must receive a salary.

"I know from experience that the knowledge of the law of parliamentary privilege of this government is thin. It is surprisingly thin, at times," says Walsh.

He says if the government wanted to suspend them without pay, they should have amended the act first.

"The Senate is not empowered by the Parliament of Canada Act to make a regulation enabling it to take away a senator's sessional allowance," he says. As such, "yes, there is a basis for the court to step in."

Walsh points out that there is virtually no case law to give the court direction here. The closest thing appears to be a 2005 case, in which Walsh was involved, where a chauffeur for the Speaker of the House of Commons, Satnam Vaid, filed for discrimination and harassment after having his job terminated. Because Vaid sued the House of Commons directly, the government claimed Parliamentary privilege.

In its ruling, Canada (House of Commons) v. Vaid, the Supreme Court wrote that "the party who seeks to rely on the immunity provided by parliamentary privilege has the onus of establishing its existence," and that the House of Commons failed to do so.

Vaid, however, also made the case that he, being merely a driver, was so far outside the mechanizations of Parliament that to apply the age-old notions of privilege to him would be to "overreach, if not trivialize, its true role and function," wrote Binnie. That sort of defence likely won't work for Wallin.

Yet much of the justification laid out by the justices might be of some assistance to Wallin. Binnie, in dealing with whether or not to apply parliamentary privilege, wrote a test for instances where the case for privilege was unclear.

He wrote that claims of privilege can only be made if the action they're seeking to protect is intrinsically linked to the work of Parliament, and "that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their legislative work with dignity and efficiency."

While Walsh says they essentially described the line, "they never actually told us where the line is."

Nevertheless, Walsh is confident that the courts will side with his interpretation. Still, he expects appeals to go on, no matter how the courts rule.

There may be some guidance tucked in the Senate reference currently being considered by the Supreme Court, as the justices pick apart the Constitution to pinpoint exactly how much leeway Parliament has to unilaterally alter itself.

The only other case of the Senate suspending a Senator doesn't offer much guidance, either.

In 1998, Andrew Thompson, a Senator for Toronto – or Mexico, depending on the time of year – was suspended following consistent absenteeism. It later came out, to the glee of those proposing Senate reform, that he spent most of the year in Mexico. In accordance with the act, his pay was garnished $120 for each sitting day he missed. He resigned not long after, and collected his pension.

Whether or not the three will be able to collect their pensions is another matter. For now, the government is looking through the regulations to see if there is a way to cut off the three from their considerable retirement funds. So long as the three are suspended, which in theory could last until they reach the mandatory retirement age of 75, they could continue contributing to their pension funds, which the government would be required to match.