Will the Senate Now Exercise Its Authority?

The Standing Committee on Ethics and Conflicts of Interest for Senators issued its report on the investigation into Senator Meredith on 2 May 2017.[1] Essentially, the report argues that the Senate possesses the collective parliamentary privilege to expel its members, and it recommends that the Senate should expel Senator Meredith. The report having been adopted, the Senate as a whole will soon vote on whether to follow through on the recommendation and expel Meredith.

The Senate also released a legal opinion by Law Clerk and Parliamentary Counsel Michel Patrice, dated 27 March 2017, which corroborates — virtually identically — the argument that I outlined in “Collective Parliamentary Privilege Includes the Expulsion of Members of Parliament,” from 14 March 2017.

Collective Parliamentary Privilege Includes Expulsion

In the Vaid case, the Supreme Court of Canada defined parliamentary privilege as such:

“Parliamentary privilege in the Canadian context is the sum of the privileges, immunities and powers enjoyed by the Senate, the House of Commons and provincial legislative assemblies, and by each member individually, without which they could not discharge their functions.”[2]

Parliamentary privilege applies both to a chamber collectively and to members individually.[3] Ultimately, the individual member’s privilege derives from, and is therefore subordinate to, the collective privilege of the chamber in which he sits.[4] Undoubtedly, one of a legislative body’s collective privileges is the discipline or expulsion of its members.[5]

The authority to discipline and expel members is necessary for any properly constituted legislative body. Therefore, the Senate possesses the authority to discipline and expel its members by virtue of its collective parliamentary privilege as a legislative body.

This authority flows from section 18 of the Constitution Act, 1867, section 4 of the Parliament of Canada Act (which itself derives from section 18 of the Constitution Act, 1867), as well as centuries of recognition in the courts and parliamentary precedent and practice. (At this stage in Canada’s constitutional development, the Parliament of Canada alone could repeal or amend section 18 of the Constitution Act, 1867 by means of a Section 44 constitutional amendment, just as it could amend the Parliament of Canada Act). Section 18 says:

The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof.

Herein lies the core argument as a deductive syllogism. The premises are true; therefore, the conclusion is true: 

1. Section 29(2) of the Constitution Act, 1867 states, “A Senator who is summoned to the Senate after the coming into force of this subsection shall, subject to this Act, hold his place in the Senate until he attains the age of seventy-five years”;
2. Section 18 is a provision of the Constitution Act, 1867;
3. Section 18 says that both the House of Commons of Canada and the Senate of Canada derive their privileges from the British House of Commons, which means that the two Canadian houses have the same privileges;
4. The collective privileges of the British House of Commons included expulsion;
5. Therefore, both the Canadian House of Commons and the Senate of Canada possess the collective parliamentary privilege to expel their members.

It is simple, logical, and incontrovertible.

The Senate of Canada does NOT derive its parliamentary privilege from the House of Lords, so any argument invoking the House of Lord can be immediately dismissed as incorrect, irrelevant, and ill-informed. The Framers very deliberately used the British House of Commons as the baseline for the parliamentary privilege of BOTH the Canadian House of Commons AND the Senate of Canada, probably because, in a Doctrine of Reception-like manner, a hereditary chamber, which at the time consisted of Lords spiritual and temporal and the Law Lords, did not apply to the requirements of an appointed chamber in a self-governing Crown colony. The Framers explicitly rejected the idea of establishing a Canadian aristocracy represented in a hereditary chamber, so they thereby also rejected using the House of Lords as a reference in defining the privileges of the Canadian House of Commons and Senate as legislative bodies.

No one disputes the fact that the Canadian House of Commons possesses the authority to expel its members; it has exercised this authority on four occasions since 1867. Yet some have denied the fact that the Senate also possesses this authority because they misapplied section 31 of the Constitution Act, 1867, which outlines the “disqualifications of Senators,” and misinterpreted it as an exhaustive list that supersedes the Senate’s authority to expel members for other reasons. It is not. Interestingly, those who deny the fact that the Senate possesses the authority to expel its members do not contend that the Senate cannot suspend its members. But where do they think that the Senate’s authority to suspend members comes from? After all, suspension is not mentioned directly in the Constitution Act, 1867. The authority to discipline members includes both suspension and expulsion, and they flow from the same sources: section 18 of the Constitution Act, 1867 and section 4 of the Parliament of Canada Act. The Standing Committee’s report confirms as much.[6]

Disqualification and expulsion are distinct. Disqualification under section 31 is obligatory and automatic; it mere requires that the Senate issue a pro forma acknowledgement that the conditions under section 31 have been met. In contrast, expulsion is discretionary, and the Senate would have to judge each individual case on its own merits in accordance with its own rules. The list of grounds for disqualification are not exhaustive with respect to expulsion.

Section 31 states:

“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.”

In contrast, section 30 of the Constitution Act, 1867 allows a Senator to resign on his own accord by taking a specific action, at his discretion: “A Senator may by Writing under his Hand addressed to the Governor General resign his Place in the Senate, and thereupon the same [his Place] shall be vacant.”  Section 31, on “Disqualifications of Senators”, is the mirror image of section 23, on the “Qualifications of Senators.” Section 23 says:

“The Qualifications of a Senator shall be as follows:
(1) He shall be of the full age of Thirty Years:
(2) He shall be either a natural-born Subject of the Queen, or a Subject of the Queen naturalized by an Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of One of the Provinces of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, before the Union, or of the Parliament of Canada after the Union:
(3) He shall be legally or equitably seised as of Freehold for his own Use and Benefit of Lands or Tenements held in Free and Common Socage, or seised or possessed for his own Use and Benefit of Lands or Tenements held in Franc-alleu or in Roture, within the Province for which he is appointed, of the Value of Four thousand Dollars, over and above all Rents, Dues, Debts, Charges, Mortgages, and Incumbrances due or payable out of or charged on or affecting the same:
(4) His Real and Personal Property shall be together worth Four thousand Dollars over and above his Debts and Liabilities:
(5) He shall be resident in the Province for which he is appointed:
(6) In the Case of Quebec he shall have his Real Property Qualification in the Electoral Division for which he is appointed, or shall be resident in that Division.”

The Rationale for Expulsion

Expulsion is discretionary and necessitates that the Senate follow its own standing orders and other processes and vote on the matter. In this case, the Senate’s Ethics and Conflict of Interest Code for Senators sets out the standards of conduct for all Senators. As the Standing Committee’s report indicates:

“The Code constitutes an exercise of the Senate’s parliamentary privilege to govern its internal affairs and to discipline its members. Both privileges are inherent to the Senate as a legislative and deliberative body and have been explicitly conferred on the Senate by virtue of section 18 of the Constitution Act, 1867 and section 4 of the Parliament of Canada Act.[7]“

The Standing Committee’s report goes on to describe the “four-step enforcement process” that it undertakes “when there are reasonable grounds to believe that a senator has not complied with his or her obligations under the Code.”[8] After conducting an investigation, the Senate Ethics Officers concluded that Senator Meredith’s conduct violated the Code.[9] Finally, the Standing Committee recommended ” That Senator Don Meredith be expelled from the Senate and that his seat be declared vacant”[10] because “He has abused his privileged position of authority and trust by engaging in behaviour that is incompatible with his office” and because “he has brought disrepute to himself and to the institution.”[11] The Report also categorically rejects the notion that merely suspending Meredith would suffice, saying “A suspension would reinstate only temporarily the Senate’s dignity and integrity, which would be again compromised when Senator Meredith would resume his seat as a senator.”[12] 

We shall soon see if the Senate as a whole follows the committee’s recommendation and exercises its authority to expel its members for the first time. If it does, then Meredith will cease to be a Senator, and his seat will become vacant. Prime Minister Trudeau would therefore be free to nominate a new senator to replace him, in accordance with the new process under the Independent Advisory Board for Senate Appointments.

Similar Posts:

• Parliamentary Privilege
• Collective Parliamentary Privilege Includes the Expulsion of Members of Parliament

Endnotes  

[1] Canada, Senate, Standing Committee on Ethics and Conflicts of Interest for Senators, 42 Parliament, 1st Session, 2nd Report: Inquiry Report under the Ethics and Conflict of Interest Code for Senators concerning Senator Meredith (2 May 2017).
[2] Canada (House of Commons) v. Vaid [2005] 1 SCR 667, at para 29(2).
[3] House of Commons, Privilege in the Modern Context (Ottawa: Table Research Branch, June 1990), 2.
[4] Ibid., 7.
[5] House of Commons, Privilege in the Modern Context (Ottawa: Table Research Branch, June 1990), 11; Joseph Maignot, Parliamentary Privilege in Canada, 2nd Edition (Ottawa: House of Commons, 1997), 180.
[6] Canada, Senate, Standing Committee on Ethics and Conflicts of Interest for Senators, 42 Parliament, 1st Session, 2nd Report: Inquiry Report under the Ethics and Conflict of Interest Code for Senators concerning Senator Meredith (2 May 2017), at pages 3 and 7.
[7] Canada, Senate, Standing Committee on Ethics and Conflicts of Interest for Senators, 42 Parliament, 1st Session, 2nd Report: Inquiry Report under the Ethics and Conflict of Interest Code for Senators concerning Senator Meredith (2 May 2017), at page 3.
[8] Ibid.
[9] Ibid., at page 5.
[10] Ibid., at page 14.
[11] Ibid., at page 13.
[12] Ibid.