The Supreme Court of Canada will decide Thursday if it will hear Sen. Mike Duffy’s appeal to launch a multi-million-dollar lawsuit against the Senate.
The top court will decide if Duffy’s long legal battle to sue the Senate over the expenses scandal and the resulting fallout will continue, or if his legal options have come to an end.
Duffy was seeking $7.8 million in reimbursement and damages from the Senate, the RCMP and the federal government in relation to his November 2013 suspension from the Red Chamber. Duffy was suspended by his peers after the RCMP launched a criminal probe into his travel and living expenses — a decision the P.E.I. senator maintains violated his Charter rights.
In December 2018, an Ontario Superior Court judge dismissed Duffy’s lawsuit against the Senate, arguing the upper house and its members are protected by parliamentary privilege, making them immune from this sort of judicial scrutiny.
Ontario’s Court of Appeal later upheld the lower court’s decision. In a strongly worded August 2020 decision, that court ruled parliamentary privilege leaves little room for the courts to scrutinize a legislative chamber’s internal affairs and how it disciplines its members.
That decision prompted Duffy to take his case to the court of last resort. If the Supreme Court decides not to hear Duffy’s appeal, the lower court decision will stand and Duffy’s legal fight for compensation will come to a close.
Duffy’s lawyer, Lawrence Greenspon, has said these past rulings effectively place the Senate above the law.
Greenspon has argued the decision to suspend Duffy came at the direction of then-prime minister Stephen Harper’s office, making it a politically motivated decision that forfeited the Senate’s immunity.
If it hears the appeal, the Supreme Court is expected to rule on how far the judiciary can go in policing a body like the Senate — a decision that could have ramifications beyond Duffy’s case.
In a 2005 case, Canada (House of Commons) v. Vaid, the top court underlined the importance of parliamentary privilege to the separation of powers between the legislative, executive and judicial branches of government.
A spokesperson for Duffy said he had no comment on the case.
Duffy’s claim for damages
After a judge cleared Duffy of any criminal wrongdoing in 2016 — Justice Charles Vaillancourt found all of his expenses to be reasonable — he launched his lawsuit against the Senate, claiming the body ran roughshod over his constitutional rights in its dogged pursuit of a scapegoat for the 2013-15 scandal over questionable expenses.
At the heart of his allegation against the Senate was a claim that the actions of both its powerful internal economy committee (the CIBA, the administrative body that essentially governs the chamber and its members) and the Senate writ large were unlawful and unfair.
He claimed the disciplinary actions taken against him — he was suspended from the Senate and denied pay and benefits while his criminal case was ongoing — were “an unprecedented abuse of power” and tantamount to expulsion.
Duffy claimed the Senate engaged in “malicious prosecution, misfeasance in public office, and unjust enrichment” when it disciplined him, and sought millions of dollars in compensation.
Duffy’s pay and most of his benefits were withheld for two years while he fought the criminal charges in court. After Duffy’s acquittal, the Senate clawed back another $17,000 in expenses — after they came to light during the trial — that were deemed inappropriate.
Duffy also argued the Senate’s actions caused him irreversible “reputational damage” and cost him money when his public speaking gigs were cancelled.
Lawyers for the upper house argued in court the Senate should be allowed to govern its internal affairs. They also said senators should be able to administer penalties against a member of that body without fear of judicial interference.
Justice Sally Gomery, the lower court judge who first heard Duffy’s lawsuit, agreed, saying privilege “clearly applies” to decisions on suspensions.
“Allowing a court to revisit the Senate’s decisions at issue here would interfere with the Senate’s ability to function as an independent legislative body, equal to other branches of government,” Gomery wrote in 2018.
“Since the actions at issue fall within those actions protected by parliamentary privilege, I cannot give any consideration to whether they were wrong or unfair or even contrary to Senator Duffy’s Charter rights. All of these are determinations that the Senate, and the Senate alone, can make.”
Gomery said that it would be inappropriate to allow Duffy’s lawsuit to proceed, given the broad constitutional protections that apply to the Senate under the long-established principle of parliamentary privilege, which exempts the actions of Parliament from review by the courts.