Proceedings of the Standing Senate Committee on
Privileges, Standing
Rules and Orders
Issue 6 - Evidence
OTTAWA, Wednesday, February 18, 1998
The Standing Committee on Privileges, Standing Rules and Orders met this day at 7:00 p.m. to consider matters pursuant to its mandate under rule 86(1)(f) of the Rules of the Senate, in particular its orders of reference of December 16, 1997 and February 12, 1998 regarding Senator Thompson.
Senator Shirley Maheu (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, tonight we are continuing our hearings with respect to our order of reference from the Senate dated December 16 which directed our committee to determine whether the absence from the Senate of Senator Thompson on February 10, 1998, the date the Senate resumed its sittings following the Christmas adjournment, constituted a contempt of the Senate.
As you will recall, we met last Tuesday and presented a report to the Senate the following day. Our report concluded:
Disobedience to an order of the Senate would appear to be, prima facie, contempt of Parliament. Before making a final determination regarding Senator Thompson, however, your Committee believes that he should be heard. This is based on the traditions of the Senate, and a desire that he be given every reasonable opportunity to provide an explanation or any relevant information and present reasons as to why his actions did not constitute a contempt of the Senate.
Senator Thompson was subsequently ordered by the Senate, on February 11, 1998, to appear before our committee tonight. He acknowledged, by fax, receipt of the Senate order sent to him by the Clerk of the Senate. This acknowledgement of receipt, dated February 12, 1998, by Senator Thompson is included in your briefing book distributed early today by the clerk of the committee.
On Thursday, February 12, on motion of Senator Carstairs, the Senate ordered that the Standing Committee on Privileges, Standing Rules and Orders be authorized to obtain further advice of legal counsel in the matter of the power of the Senate to expel, suspend or otherwise deprive Senator Thompson of his seat in the Senate, and the ability to withhold Senator Thompson's sessional indemnity and expense allowance, whatever his current status as a member of the Senate.
Within the last few hours, the clerk has received a communication from Senator Thompson.
Mr. Clerk, would you please read the fax which you received.
Mr. Paul Bélisle, Clerk of the Senate, Clerk of the Committee: Honourable senators, I did indeed receive a fax this afternoon, at 2:26 Mexican time, 4:26 Ottawa time. It is addressed to me from the Honourable Andrew Thompson. It reads as follows:
At no time have I wished to be in contempt of the Senate. I respect the institution.
When my doctors approve my fitness to travel, I shall certainly appear. Please confirm to the appropriate committee members that I have submitted the necessary medical documentation.
Andrew E. Thompson
The Chairman: I believe that it is therefore important that we arrive at a conclusion as to whether Senator Thompson's actions constitute a contempt of the Senate and, if so, what disciplinary action should be recommended to the Senate.
We are pleased to have with us tonight as a witness Mr. Neil Finkelstein, a lawyer from the Toronto office of Blake, Cassels and Graydon.
Mr. Finkelstein is a chartered accountant and has received law degrees from both McGill and Harvard universities. He was the law clerk to the Right Honourable Bora Laskin, Chief Justice of Canada in 1980 to 1981, and was called to the bar of Ontario in 1982. He has advised both federal and provincial governments on constitutional reform and has taught constitutional law at both Osgoode Hall Law School and the University of Toronto Law School. He is the author of Laskin's Canadian Constitutional Law, fifth edition, and Constitutional Rights in the Investigative Process.
I suggest, honourable senators, that the public portion of our meeting tonight should focus on the question of whether Senator Thompson's actions constitute contempt and, if so, what should be the appropriate disciplinary action to recommend to the Senate.
Without in any way wanting to restrict debate, I suggest that at around 8:30 we think about starting to wind things down so we could then go in camera to discuss a possible report to the Senate. I remind members that we only have until February 24, next Tuesday, to present our final report. I would ask that honourable senators hold their questions until after our witness has completed his opening statement. I will then accept questions from members and, on the second round, from other senators who may wish to ask questions. I now ask Mr. Finkelstein to make an opening statement.
Mr. Neil Finkelstein, Lawyer, Blake, Cassels and Graydon: Thank you, Madam Chairman.
Honourable senators, I have been asked to address one question: Has the Senate the power to expel, suspend, fine, or otherwise deal with a senator who does not attend and who does not comply with orders of the Senate? In the context of answering that question, I will deal as well with the question of whether non-compliance with the order can constitute contempt in this context.
Has the Senate the power to expel, suspend, fine or otherwise deal? Starting from the easiest and going to the hardest, on the question of whether the Senate has the power to fine, in my opinion, it does not. That is not a power or privilege that the U.K. House of Commons has and, accordingly, in my view, it is not a power that the Canadian Senate has either.
I hasten to add that it does not follow from that that the Senate cannot take away a senator's sessional allowance. In my opinion, that is a different question. That is not a question of punishment; it is simply control of the internal procedure of the house. A member who does not comply with his obligations does not get paid.
That is a question of privilege at lex parliamenti in any event, and it is specifically contained in section 59 of the Parliament of Canada Act. Section 59 of the Parliament of Canada Act provides that the Senate can, by regulation, render more stringent, and I would say that means render stringent down to zero, payment of the sessional allowance.
If the Senate wanted to be very clear and very correct in its procedure, it would follow the procedure outlined in section 59 of the Parliament of Canada Act by regulation.
On the power of the Senate to suspend, in my opinion, this too is clear. It is clear that the Senate does have the power to suspend a member, and that that power is not reviewable by a court. Again, it is a question of power and privilege codified by section 4 of the Parliament of Canada Act, provided for in section 18 of the Constitution Act, 1867. I have three reasons for coming to that conclusion.
First, on its face, it is clear that the power to suspend is a power that resided in the imperial House of Commons.
Second, section 18 provides that the Parliament of Canada can give, and has given in section 4 of the Parliament of Canada Act, the Senate up to but not exceeding the powers, immunities, and privileges enjoyed by the imperial House of Commons at Confederation. The power to suspend was a power enjoyed by that house at that time and therefore carries over to this house.
Third, there is nothing in the Constitution Act, 1867, or in any other constitutional instrument of which I am aware, which cuts back on that power. At the end of the day, in my view, the power to suspend a member for contempt is part and parcel of the power of the Senate to control its own process and to protect itself from being brought into disrepute.
Of course, to repeat the obvious, it would certainly be within the Senate's power in this case to use section 59 to reduce or eliminate the sessional allowance during the period of the suspension.
The third issue that I have been asked to consider is whether the Senate has the power to expel. I understand that you heard from Mr. Maingot that, in his opinion, there is the power in the Senate to expel. With some trepidation, let me put the other side of that case.
Let me give you the punch line now: This is an extremely grey area, and good arguments can be put on either side of the case. My own view is that, at the end of the day, because of the way the Constitution Act, 1867 is written, the Senate does not have the power to expel. Let me break this up into two pieces.
First, could the Senate find Senator Thompson in contempt in this instance? Let me be clear: I am not giving any advice one way or another on what the Senate should do, only on what the Senate could do in this case. In this case, there is no specific, clear definition of contempt, but the generally held view, and it is set out in Mr. Maingot's book and in Erskine May and Beauchesne, is that the Senate can find a person, and particularly a member, in contempt if that person does something which brings the house into disrepute.
In this case, Senator Thompson has not complied, as I understand, with two orders of the house. One can make the case that there has been an explanation given tonight by fax with this second letter, but on its face there is nevertheless non-compliance.
In my opinion, when a member of the Senate disregards an order of the house, that goes to the heart of the institution. The institution must be able to make orders in the expectation that there will be compliance with those orders. If that does not happen, then, in my opinion, the Senate could find that its practices and procedures have been brought into disrepute, and that constitutes contempt.
I have told you that that clearly then could give rise to suspension. The question is on expulsion. I would not characterize expulsion in this case as being a question of punishment. I would characterize it as simply a power in the Senate to protect itself and its processes. The question is whether that power has been given to the Senate.
Section 18 of the Constitution Act, which was brought to your attention last week by Mr. Maingot, provides that the Parliament of Canada has the discretion by statute to give the Senate powers, privileges and immunity. The restriction on that is that those powers, privileges and immunities cannot exceed those enjoyed by the United Kingdom House of Commons at Confederation.
It is clear that the House of Commons did have the power to expel a member. It is clear that section 4 of the Parliament of Canada Act is an exhaustion of the power given to Parliament. Parliament has given all of the powers permitted by section 18 to the Senate.
If the Constitution Act stopped there, then there would be no question that the Senate has the power to expel, but it does not stop there. Section 29 of the Constitution Act provides that a senator subject to this act -- and that is a very important qualification -- holds office essentially until age 75 when you read through subsections (1) and (2).
How do we read "subject to this act"? Section 29 read by itself would mean that a senator cannot be expelled because that senator holds office until age 75. Section 31 says that the place of a senator shall become vacant simply by operation of law, on the happening of any one of five events. My understanding is that none of those five events has occurred.
Section 31 is not stated to be exhaustive, so one can make the case that those are five ways in which a Senate seat can become vacant but that there are others -- such as expulsion. One can make the case that not only is section 31 an exception to the age 75 rule in section 29 but so is section 18. Again, if one accepts that case, there is expulsion.
I have clients who hate two-handed lawyers who say "on the one hand" and "on the other hand," but, I am sorry, I will give you a two-handed view. On balance, given the specificity and care which has obviously gone into section 31, the intention of the framers of the Constitution Act, 1867 was that section 31, plus the one on death, plus section 30 on resignation, are exhaustive of the ways in which a Senate seat can become vacant.
A very persuasive case can be put to the contrary. I have tried to give you the outlines of that case.
At the end of the day, I think the Senate does not have the power to expel when section 18 is read in the context of section 31.
Senator Beaudoin: We had a discussion like that in the Senate. Suppose there is such a right as expulsion. You outlined the two possibilities. Does this mean that the place becomes vacant, or does it mean that it is ipso facto vacant?
Mr. Finkelstein: Senator, on a common-sense reading, if a person is expelled, his seat becomes vacant. The Constitution Act itself is silent on that question because it is silent on the question of expulsion. Section 33 of the Constitution Act, a section which I am not sure has been brought to your attention just yet, provides that if any question arises respecting the qualification of a senator or a vacancy in the Senate -- and I would read that to include the question of whether there is a vacancy -- the same shall be heard and determined by the Senate. Thus, the question of whether that constitutes a vacancy -- and I think it does -- is to be determined by the full Senate. The answer would not be reviewable by a court.
The Constitution Act, 1867 specifically gives the decision-making responsibility for that question over to the Senate. A court would not look at it, in the same way that a court would not look at questions of internal practices and procedures, as the Supreme Court of Canada said three or four years ago in the case regarding the CBC.
Senator Beaudoin: I am not necessarily going in that direction but you seem to say that the Senate, in such a case, if this is the desire of the Senate, may have a certain latitude in law which is not reviewable.
Mr. Finkelstein: Yes, the Senate is bound to apply its best judgment of what the law is, in the same way as a court. However, certain legal questions are given over to the court to decide. The Supreme Court of Canada is infallible because it is final. Similarly, on this question, the Senate would be the final arbiter of the legal question of whether expulsion would create a vacancy.
Senator Nolin: You have talked to us about the sessional allowance. What about the expense allowance, which is the other part of the emolument that Senator Thompson is receiving? It is covered by different legislation.
Mr. Finkelstein: My opinion, sir, is that, even apart from section 59, the Senate has the power to take away the sessional allowance. That question is not free from doubt, but I am of the opinion that that is the case.
I am also of the opinion that the same answer would apply to the expense allowance. You are quite right, section 59 applies to the sessional allowance, not the expense allowance. However, I would say that as under section 18 and section 4, dealing with powers and privileges, the Senate has the power to take that away.
Senator Grafstein: This is obviously a difficult matter for all senators. I just want to be clear, so I will put these questions to you clearly. Are you telling this committee that failure to appear by the senator is clearly contempt?
Mr. Finkelstein: Failure to obey an order of the Senate is clearly contempt.
Senator Grafstein: Do you go further and say that that brings the Senate into disrepute? If a finding were made, would that also be the basis of a contempt?
Mr. Finkelstein: That is the definition of contempt: holding the Senate up to disrepute.
Senator Grafstein: Finally, would a systematic abuse of a senator's privileges also be considered contempt? If such a finding were reached, would that be considered contempt?
Mr. Finkelstein: Senator, that is a question for the Senate to decide. If the question is whether the Senate could come to that conclusion, yes, it could.
Senator Grafstein: If the Senate came to that conclusion, would that be considered contempt? That is my question.
Mr. Finkelstein: That would be the question for the Senate. The Senate would decide whether that brings the administration of the Senate into disrepute. If the answer to that was yes, I would say that the Senate would then have answered its question, that that is contempt.
Senator Grafstein: Again, if we came to the conclusion that there was a systematic abuse of the Senate's privileges and concluded that that was contempt, would we be within our powers to make such a finding?
Mr. Finkelstein: The Senate is the arbiter of what is contempt. It is a matter for the Senate to determine, not a matter for the courts to determine.
Senator Lewis: A few moments ago, in answer to Senator Beaudoin, you dealt with expulsion. I believe you also mentioned that the Senate has the power to suspend. I take it suspension is a temporary sort of disassociation.
Mr. Finkelstein: "Temporary" is in the eye of the beholder, but that is true.
Senator Lewis: In such a case, if the Senate were to impose a suspension on a senator, how would that affect his remuneration and any other rights and privileges he might have under the Parliament of Canada Act?
Mr. Finkelstein: If the Senate suspended Senator Thompson without more, that would not affect his remuneration.
Senator Lewis: That would continue?
Mr. Finkelstein: Yes. The question then becomes: Does the Senate also have the power to reduce or eliminate his remuneration? I have given you my view that it does. However, the Senate would have to take that step. Absent the Senate taking the step, the senator would continue to be paid, notwithstanding that he was under suspension.
Senator Lewis: The Senate would have to be specific about it.
Mr. Finkelstein: That is correct.
Senator Carstairs: Section 59 clearly says that we have the power, as a Senate, as does the House of Commons, by regulation, rule or order. However, it refers only to sessional allowance. It does not include the tax-free expenses.
When you go to the section that deals with expenses, it does not appear, from my reading, to give either the Senate or the House of Commons the power to deal with that by regulation. In your view, would it require an amendment to the Parliament of Canada Act to eliminate that provision?
Mr. Finkelstein: Senator, that is a very similar question to the one that Senator Nolin asked me. The issue of whether the sessional allowance can be reduced or eliminated is obviously crystal clear, and dealt with in section 59. The issue of expenses is less clear, because there is no analogue to section 59. If you were wishing to be absolutely clear, then you would have an amendment to the Parliament of Canada Act to promulgate a section similar to section 59.
It is certainly not as clear with respect to the expenses as it is with respect to the sessional allowance, but, on balance, my opinion is that section 4 is a statutory codification of the powers and privileges of the U.K. House, and that includes the power to reduce or eliminate the remuneration.
A case can be made that the privilege in the United Kingdom house does not provide the ability to override the statutory provision. It gets circular when you do that. It is not as clear with respect to expenses as it is with respect to the sessional allowance. However, on balance, you have the ability, through two different routes, to do both.
Senator Ghitter: Madam Chairman, I should like clarification on the distinction to suspend and expel.
Am I right in saying that if we suspend, we are not vacating the seat and so he could come back and, under some circumstances, be reinstated?
Mr. Finkelstein: Yes, once the Senate lifts the suspension, that is correct.
Senator Ghitter: What are the remedies available to Senator Thompson if we did suspend him?
Mr. Finkelstein: The law of Parliament is that each house regulates its internal procedures. The courts will not interfere with that.
I was fortunate enough to be counsel to the Ontario speaker in the case involving the CBC in the Supreme Court of Canada. The court was very clear in that case. That was a question of television in the legislature. The argument was made by the CBC that they have a constitutional right to bring television into the chamber, that that constitutional right resides in section 2(b) of the Charter of Rights, and the Supreme Court of Canada said that they would not discuss section 2(b), that that was a question for the house to determine.
Where the Senate is acting within its jurisdiction in suspending a senator -- and that would be the case here -- that is a question for the Senate to decide, and it is not reviewable by a court.
To cut to the chase, if the question is, could Senator Thompson go to court for an order of mandamus ordering the Senate to make his seat available to him, my answer would be very clearly, no, he could not do that.
Senator Ghitter: Assuming that I agree with your conclusion -- which, quite frankly, I do not, but lawyers are lawyers and that is the nature of things -- what are the remedies available to Senator Thompson if we expel him?
Mr. Finkelstein: Not to be overly legalistic about this, but courts will take the view -- and this is clear from the case regarding the CBC, the Donahoe case, that the court reserves to itself the jurisdiction to decide whether a matter is governed by privilege. If it is governed by privilege, then the court will not review the exercise of that privilege.
To answer your question, the question for the court would be the following: Is this an exercise of privilege within jurisdiction that we will not review, or is it an excess of jurisdiction?
The answer I have given you is not on that question, but rather on the substantive question of whether you have the power to expel, and I think you do not.
The question then becomes: Where is that question vindicated? I think that is not a question for a court to decide, but rather for the Senate to decide, and I go to section 33 for that. Section 33 states that a question about a vacancy is one to be determined by the Senate. Therefore, if the Senate determines that a seat is vacant because it has expelled a senator, the Senate may be wrong, just as the Supreme Court may sometimes be wrong. However, no one has the jurisdiction to do anything about it. The Senate is the final arbiter of the question, in my opinion.
Senator Ghitter: You have honourably stated that there is an argument on both sides. Beauchesne would disagree with you and say that the Senate can do as it deems fit in matters of this nature and matters of expulsion. It goes back to Louis Riel, Nova Scotia and things of that nature.
Mr. Finkelstein: Those were House of Commons decisions.
Senator Ghitter: Agreed, but we have the powers of the House of Commons.
Mr. Finkelstein: We have been through the argument.
Senator Ghitter: Assuming that we do expel, and assuming that your argument is right, Senator Thompson is still powerless to do anything about it. He has no recourse.
Mr. Finkelstein: Well, he does. He can make his case to this august body and see how he does.
Senator Ghitter: But not to the courts.
Mr. Finkelstein: Not to the courts.
Senator Ghitter: He can come back to the Senate and make his case, but he cannot go through the judicial system.
Mr. Finkelstein: He can try. My opinion is that at the end of the day he will be unsuccessful. The court will not review the decision of the Senate.
Senator Nolin: If we follow your advice and pass a regulation to suspend the salary, the expense allowance and the sessional allowance, can we date that to the date of the contempt, which would be last Tuesday?
Mr. Finkelstein: That is an interesting question.
I think the answer at the end of the day is yes. I say that because, following through on my discussion of a moment ago, it would not be reviewable by a court. That is a question of form, though, rather than of substantive right or wrong. I would think that the Senate can control its own process in that regard and, therefore, date it to the time of the contempt.
However, there is a principle of statutory interpretation that a body is not entitled to make regulations that are retroactive. If that principle applies, that would militate against the Senate's being able to make it retroactive; so the Senate had better hurry.
Senator Nolin: Would it be interpreted as a fine if we impose a limitation on the pension he can take?
Mr. Finkelstein: I have not considered that question. However, sitting here now, and since I will not be back, I will take a stab at it.
To the extent that the senator's pension is vested in him, it is his. Taking it away from him constitutes a fine.
Senator Nolin: It is untouchable.
Senator Grafstein: I would seek clarification with respect to Senator Ghitter's question. You have said to us that the better course of action is suspension as opposed to expulsion because expulsion has more statutory difficulties. Am I clear about that?
Mr. Finkelstein: The better course of action?
Senator Grafstein: That the Senate has the clearer course of action.
Mr. Finkelstein: The clearer course of action, correct. However, not discussing the question of the right and wrong of the law but who decides at the end of the day, in my opinion, the decision maker in either event is the Senate, pursuant to section 33.
The Chairman: Thank you for your time and your attendance here this evening.
With your permission, senators, we will continue in camera. Is it agreed?
Hon. Senators: Agreed.
The committee continued in camera.