Debates of the Senate  
2nd Session, 41st Parliament, Volume 149, Issue 11
  Monday, November 4, 2013
 
Speech on Motions to Suspend Senators Brazeau, Wallin, Duffy
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 very wise, and he said something to the effect that we have more in common than we have differences. I think that's true even in this case, that we have more in common than we have differences. We all want to see a resolution to the situation before us. We all think that claims have been made, expenses have been reimbursed that shouldn't have been reimbursed, and we want actions, sanctions to be taken. But where we disagree is on how we determine what those sanctions should be, the process, and whether or not that process has been fair. As I said in my previous speech, I think that the process has not been fair to the three senators Duffy, Wallin and Brazeau and we have been too hasty.

The sanctions proposed in this motion, suspension without pay, are the sanctions, according to our rules, which we usually reserve for a senator who has been found guilty of a criminal charge during court proceedings. That's a very high sanction. That seems to me to be very severe, so that's why I think we have to take our time in determining whether or not we support this motion.

The silver lining in all of this was alluded to by several senators, that we will now have to sit back and say, "What are we going to do next time and what have we learned from this?" We must now go forward with a better process, such as referring it to a special committee, and develop a code of conduct so we know what is acceptable and what is not.

Tonight I would like to focus my remarks on the possible conflict between what we are doing in the chamber with these motions to discipline the three senators and whether that will have any impact on criminal investigations or charges that might come out of what the police are now investigating. That has been raised several times by Senator Baker, who said there may be a serious problem here; and Senator Nolin addressed it as well, saying no, he didn't think that was so.

But I think that if there is a potential, why would we take the risk? Should we not err on the side of caution?

Many people have said in the last couple of weeks that it is clear that the Senate is master of its own house, with exclusive authority to administer and regulate the functions of the house. It has been pointed out that our proceedings may have serious consequences for the ongoing police investigations into the potentially criminal actions of the three senators Duffy, Wallin and Brazeau.

The government has argued that our Senate disciplinary proceedings will not impact the ongoing police investigations, things like fraud and breach of trust against the three senators. However, in two other Commonwealth countries where they had to deal with similar cases of fraud, breach of trust and theft, the United Kingdom and Australia have taken the opposite stance with respect to any infringement upon court proceedings. They halted, stopped their internal investigations into either a lord or a member of Parliament after the police initiated their investigations, even before the charges were laid. In Australia and the United Kingdom, those houses of Parliament decided that they were going to stop their investigations. Once those investigations were completed, whether or not a charge had been laid, then they restarted their own process. So they erred on the side of caution.

The government leader has also referenced the United Kingdom House of Lords as a precedent for these motions for suspending the three senators without pay, but he did not mention that the disciplinary proceedings to suspend the lords were halted when the Metropolitan Police Service started their own criminal investigations into the same allegations. I'm repeating it again to make sure that it's clear what happened.

The main reason that the House of Lords did this was so as not to jeopardize any police investigation and criminal prosecution, while trying at the same time to attain a level of fairness and due process. They did not want to interfere with the police investigation and possible laying of charges.

After the allegations of parliamentary expenses abuse was widely reported in The Daily Telegraph newspaper and other media in 2009, the United Kingdom House of Lords and the Clerk of the Parliaments started an investigation into those allegations. This internal investigation was then suspended or halted, as I mentioned, when the Metropolitan Police Service started its own separate criminal investigations into the same allegations. The internal investigation and disciplinary proceedings to suspend only resumed after the Metropolitan Police Service informed the Clerk of the Parliaments that either they would not pursue charges or after the conclusion of criminal proceedings.

Let me repeat that: Once the police started their own investigation into the same allegations of abuse of parliamentary expenses, the House of Lords suspended that's a terrible word; "suspended" is confusing halted their internal disciplinary proceedings until the criminal proceedings were finalized, either with no advancement of criminal proceedings, as indicated by the police service, or at the conclusion of a criminal trial. So they were done completely separately. The two investigations didn't run at the same time.

The reasoning behind such a stance is outlined in the U.K. Supreme Court decision R. v Chaytor in 2010. During the court's decision they stated that the process had been agreed upon by the houses of Parliament and the police services. It stated:

The Chairman reiterated the Committee's belief in the general principle that criminal proceedings against Members, where these are considered appropriate, should take precedence over the House's own disciplinary proceedings....

Where this was done, the Chairman confirmed that the Committee would normally expect the Parliamentary Commissioner to suspend his inquiries until the question of possible criminal proceedings had been resolved.

Furthermore, the larger question of whether there is a relationship between disciplinary proceedings in Parliament and criminal proceedings for the same crime was also answered by the court, and that is stated in their decision at paragraph 81:

Where a crime is committed within the House of Commons, this may well also constitute a contempt of Parliament. The courts and Parliament have different, overlapping, jurisdictions. The House can take disciplinary proceedings for contempt and a court can try the offender for the crime. Where a prosecution is brought Parliament will suspend

halt

any disciplinary proceedings. Conversely, if a Member of Parliament were disciplined by the House, consideration would be given by the Crown Prosecution Service as to whether a prosecution would be in the public interest. In 1988 Mr Ron Brown MP damaged the mace in the course of a heated debate and declined to apologise. The House exercised its penal powers in relation to both the damage to the mace and the lack of respect for the authority of the Chair. The Director of Public Prosecutions subsequently halted an attempt to bring a private prosecution.

The court has contemplated that, regardless, if the house does discipline their member where a criminal prosecution may also be brought, the sanction must be given consideration by the Crown Prosecution Service as to whether a prosecution would be in the public interest: an overlap. As such, it meaning the sanction would also have consideration in the criminal proceedings and subsequent trial. This consideration may come in the form of Senator Baker's arguments of criminal double jeopardy, or it could be argued by these senators that they have already been punished under the exclusive authority of the Senate, and the court may not seek further sanctions.

Either way, it would be unacceptable that a disciplinary proceeding in this chamber would exclude these three senators from facing the law in criminal prosecutions or, at the very least, delay criminal proceedings against them on jurisdiction motions and appeals.

Simply put, honourable senators, in absence of such legal guidance from our own parliamentary and criminal law experts, why are we willing to flirt with the legal possibility that our actions here may immune these three senators during their criminal proceedings? There is that risk. Are we going to go forward and take that risk?

If I were to put it in the Conservative political lexicon, if they have done the crime, will they do the time because we have prosecuted them here?

Honourable senators, the U.K. is not alone in giving precedence to the criminal proceedings over Parliament's own disciplinary proceedings. In Australia, the Parliament of Queensland faced a similar circumstance in the case of Mr. Gordon Nuttall MP. During the deliberations of the ethics committee, it was stated:

... that the committee's established procedure when dealing with allegations of contempt which may also be a possible criminal offence is to take no action in relation to the possible contempt until any actions in relation to the alleged criminal offence have been finalised.

This concurs with the principles in the U.K. that any investigation of contempt by the Ethics Committee could prejudice the prospect of any possible criminal proceedings and/ or a person's defence to those proceedings.

Independent legal advice was sought into the implications of contempt proceedings during the lead-up to Mr. Nuttall's criminal trial. Mr. Davis QC advised that contempt proceedings, which would happen internally in their parliament, should be halted until the criminal proceedings have been concluded.

So, in both cases, the proceedings within Parliament had been halted until the police had done their investigations and, if charges were laid, the criminal proceedings have concluded.

I would like to remind honourable senators that even though it is not stated in these motions, the government has argued that contempt is a parliamentary offence that these three senators have committed.

Honourable senators on both sides have stated during debate on this and the previous three motions that our process does not respect due process or fairness to the three senators. I agree. Worse yet, our actions in this chamber may also taint the criminal proceedings in achieving due process and fairness outside the chamber.

While the government would like us to think that the actions taken here are completely independent of the criminal proceedings under way and our finding of gross negligence would have no effect on the criminal proceedings, I would argue that the U.K. Supreme Court and Australian precedents have stated the exact opposite. Even if you look at our penalties within our rule books, the penalty, as I said before, of suspension without pay is after a senator has been found guilty of a criminal offence, not before, and not before they've been charged.

The perfect way to proceed would be to halt what we're doing. The second perfect way would be to go with what Senator Cowan has said: take it to an independent committee. Let's get the proper structures and processes in place.

A second important departure from the House of Lords precedent is that each lord's case was taken separately and evaluated separately. Each lord was given an appeal mechanism and was then sanctioned to different suspensions and repayments. They didn't bundle them all together, all three of them. You know, roll up the rim and we'll get rid of them. They're all bundled together.

As outlined above, after the police service had notified the Clerk of the Parliaments of the determination of the criminal proceedings, the House of Lords subcommittee was then charged to investigate the issues and recommend sanctions against the lords in question.

Could I have five more minutes?

The Hon. the Acting Speaker: Agreed for five more minutes?

Hon. Senators: Agreed.

Senator Dyck: Thank you.

The reports of the House of Lords subcommittee on conduct and privileges recommended different lengths of suspension from four months to the remainder of the parliamentary session. So, in those cases where the lord was not charged with a criminal offence, I believe they were still suspended without pay, but only for a period of four months, a much shorter length of time than we are envisioning here. The reports with the recommended suspensions were then reported back to the chamber, debated and passed.

In the motions to suspend before us, as has been stated by many senators, it is a case of one-size-fits-all on evidence produced by the Internal Economy Committee and external auditors Deloitte, not on an issue of contempt or gross negligence but on the basis of an audit. There's no way our process comes close to following the precedent of the House of Lords. I would think that would be the chamber to which we would aspire and that we would follow the kind of precedents that they have set.

Surely we should follow and allow due process and fairness to the three senators, which would ensure that due process and fairness in subsequent court proceedings would also happen.

In the U.K. and Australia, as I've said, when dealing with similar issues of expenses that weren't allowed, they suspended halted their investigations until the police had finished what they were doing. They did so as to not interfere with any court proceedings. And here's the real irony, honourable senators: these senators could argue that they've already got punished here. They've been suspended without pay until who knows when, until we decide to remove that sanction under whatever that rule is saying we lift the suspension. They could say they've already been punished to such a high degree that there's no way the courts could then punish them even more, because they've already been punished under the exclusive authority of the Senate. So, really, the whole thing could backfire and blow up in the faces of those that want to punish.

I do think all of us think something needs to be done. Some sanctions have to be given to the senators, but I think we have gone about it too hastily, without due thought. The outcome, honestly, I don't think it's going to be good. I don't think the general public, from the letters that we've been receiving the letters at first were overwhelmingly "Get rid of them." "Get them out." "Suspend them." Now the letters are saying they, like every other Canadian, deserve due process and fairness, so we must sit back. Being the chamber of sober second thought and setting a precedent here in the Parliament of Canada, we must do the right thing. We must consider this and reject this motion and support the amendment. The ideal, of course, would be to halt and start afresh.