Friday, October 25, 2013

How Can You (Legally) Remove A Senator?

While anyone who has read my tweets on the subject, I have less than no sympathy for Senators Duffy, Wallin and Brazeau.

Actually, that's not true. In the murky world of Conservative power politics and greed, it appears that they are on the short end of a very short stick. More than likely they were just following orders, doing exactly what Harper appointed them to the Senate to do - be the money-raising celebrity show ponies of the Harper government. I do believe them when they say that their actions were vetted, approved and well known to the very powers that now disavow and disown them and throw them to the curb.

But that's politics. Especially Harper politics.

More troubling is the current Senate schoolyard brawl where the Senators - more than half of whom have now been appointed by Harper - are either (a) anxious to prove their relevance and integrity to the public by ousting them, or (b) make the problem go away for Harper by getting the Conservative Senators to gang together at the direction of the PMO and shove them out the door in the hope that the issue can then be falsely labelled as "resolved" and Harper can move on to less toxic problems, like the faltering economy.

The problem with the rush to expel Harper's menage a trois of Senators is that no one seems to care what the Constitution of Canada says about it. It always comes as a surprise to Conservatives that there are rules about these things. That is because, as I have said before, Harper's Conservatives do not believe in the Rule of Law, a fundamental underpinning of our society. 

Whether it is mandatory minimum sentencing or reforming the Senate, Harper and his CPC absolutely reject the notion that they, as a government, are bound by the rule of law. They refer to the idea of the "Supremacy of Parliament", but don't acknowledge that in a Constitutional democracy the government has legal boundaries about what it can and can't do. That is why they lose so many Charter challenges in court on their proposed legislation.

In the current Senate cat fight, the Constitution Act 1867 is very clear about the grounds needed to expel a Senator from office.

Constitution Act 1867 - Section 31

The Place of a Senator shall become vacant in any of the following Cases:

(1) If for Two consecutive Sessions of the Parliament he fails to give his Attendance in the Senate:  (2) If he takes an Oath or makes a Declaration or Acknowledgment of Allegiance, Obedience, or Adherence to a Foreign Power, or does an Act whereby he becomes a Subject or Citizen, or entitled to the Rights or Privileges of a Subject or Citizen, of a Foreign Power:  (3) If he is adjudged Bankrupt or Insolvent, or applies for the Benefit of any Law relating to Insolvent Debtors, or becomes a public Defaulter:  (4) If he is attainted of Treason or convicted of Felony or of any infamous Crime:  (5) If he ceases to be qualified in respect of Property or of Residence; provided, that a Senator shall not be deemed to have ceased to be qualified in respect of Residence by reason only of his residing at the Seat of the Government of Canada while holding an Office under that Government requiring his Presence there.The sections that are most likely to operate to remove a Senator are sections 31(3) - bankruptcy - and 31(4) - a felony conviction. In Duffy's case, section 31(5) might also operate by being deemed to not live in the province he represents.
Until and if Duffy, Wallin, and/or Brazeau meet any of these conditions, they cannot be expelled from the Senate, as badly behaved as they may have been.

No Senator has been expelled in recent history, and there have been some pretty bad examples of behaviour by members of the place of sober second thought. Of those Senators who have left prematurely, they have all resigned rather than face possible criminal prosecution and expulsion under section 31(4).

Can a Senator be expelled for fiddling their expense accounts and collecting a housing allowance they are not entitled to? Only it appears if criminal changes are involved and only if and after they are convicted of a "felony" - i.e. an indictable offence.

So it pains me to say this from a purely partisan standpoint, but there are no grounds (yet) under the Constitution to expel Duffy, Wallin or Brazeau. 

There may be if charges are pursued and successful, and in the past suspect Senators have had the good sense, shame or skin-saving instinct to resign first, but if they want to hang on to their tainted seats, they can for now.

Some commentators and even some Senators in the current debate have said that "the Senate has the right to govern itself", which is true, but only to a point.

The Senate does not have the power to decide who gets to remain a Senator, except in accordance with the Constitution, any more than the House of Commons gets to decide who is an MP. 

Imagine the danger of the Senate or House of Commons acting like a tree fort clubhouse where the majority makes and changes the rules to suit, and gets to band together to kick out anyone they don't like regardless of the Constitution. That is Harper's mistaken vision of the "Supremacy of Parliament", which is nothing more in reality than arbitrary tyranny.

So what can the Senate do?

Well, they can cooperate fully with any criminal investigations into any allegations against Senators. If it leads to a conviction, that Senator can be removed under s. 31(4). They can hold a hearing to see if a Senator is disqualified due to residency requirements under s. 31(5) and then declare that person (or ask the Governor General) no longer qualified and declare the seat vacant. They can do what they should have from the beginning and scrutinize Senators' accounts and cut off financial abuse at the source.

But expulsion? No.

Not yet, anyway, because we are still a country under the rule of law. 

And the law applies equally to scoundrels as it does to saints.