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Neither Pamela Wallin nor Mac Harb will face trial over their Senate expenses. Mike Duffy has been cleared of 31 charges and the decision won't be appealed. That leaves Patrick Brazeau as the only one still facing fraud and bribery charges. What do these outcomes mean? Was all the fuss over the Senate expenses in vain? And what do they mean for real reform of the Senate itself? Richard Mahoney, John Capobianco and Tom Parkin are in the ONW Salon.

 

 



Richard Mahoney:

Sometimes it's easy to think of the Senate as a bad rash on our body politic - one that won't go away, no matter what steroid we apply. However, the question is a serious one. The Senate is one of our two federal legislative chambers. It reviews and approves all legislation in Canada. Some of the anachronisms present in its administration were on display for all to see in the Senate expense scandal.

But I don't think that simply because Mike Duffy was acquitted and charges were dropped against Mac Harb and Pamela Wallin was not charged, we ought to conclude that all the fuss was in vain, or that real reform is not possible.

First of all, as a result of the scandal, the Senate has cleaned up its administration and clarified rules so that questionable expense claims can be dealt with directly and clearly. Hundreds of thousands of dollars were paid back too along the way.

Prosecuting bad expense claims as criminal matters never struck me as a good idea. In most work places, a faulty or questionable expense claim is refused, or questions are asked, backup documents and approvals required. Front-page news and criminal prosecutions are not the right remedy for conduct that essentially ranged from mistakes to a sort of "I am entitled to my entitlements" kind of approach by certain individuals.

The public shame and new rules that came as a result of all this are more appropriate cures to that kind of thinking than a criminal court.

Finally, the impact of the biggest change made as a result of all this scandal is mostly yet to be felt. Justin Trudeau's expulsion of Liberal Senators from his caucus, and the resulting appointment of more independently minded Senators, mean that the role of that place is already evolving into the chamber of sober second thought that it was intended to be and needs to be in order to be useful to Canadians.  

 

Tom Parkin:

Was the Senate spending scandal a story told by an idiot, all sound and fury, signifying nothing?

No. Criminality isn't the standard of behaviour against which we measure our civic leaders. There was an extensive audit and about $1 million was found to have been improperly claimed and paid out. It appears the "tab's open" mentality may now be hitting some limits.

Those suspended have not been paid back for their time during suspension. The improperly paid money is (slowly) being paid back. There are new rules to stop Senators who live in Ottawa from claiming out-of-town expenses.

Those signify something.

What does any of this mean for real reform?  Unfortunately, it signifies nothing.

We still have a Senate passing and amending laws with no democratic legitimacy. It's shameful.  

Senate practices have been strengthened. But there is still more to be done. We still have the secretive Board of Internal Economy (BOIE) administering this system without oversight. The Auditor-General recently suggested that his jurisdiction be expanded to allow spot review to ensure the BOIE and Senators do not spin off into the crazy self-indulgence that did before.

I disagree with Richard that thieving from one's employer shouldn't be dealt with as a criminal matter. If the law is broken and there is a guilty mind behind it, by all means, just as a private citizen might be charged for stealing from an employer. There should be no privilege for Senators in that matter!

 

John Capobianco:

The issue relating to Senate reform has absolutely come to the forefront of our public policy debate after the lengthy trial of Senator Duffy wherein he was cleared of all 31 charges by the court, as well as the subsequent charges against former Senator Mac Harb being dropped and charges against Senator Pamela Wallin never materializing. As my colleagues above have mentioned, this is a serious issue that needs to be resolved one way or another and to have the Senate's legitimacy retained.

Yes, some changes have been put in place, but there needs to be more to regain public trust. We need to use this opportunity to reform and rebuild the Senate. I have always believed in the Senate as a key part of our legislative branch, which serves as "a chamber of sober second thought" by keeping a reasonable check on the House of Commons.

However, over the course of many, many years and various PM’s of all party stripes (save and except the NDP), it has become a veritable political appointment operation, with Senators often being appointed with no other reason but to stamp their approval on government legislation.

To be clear, I am not making a generalization, as I know full well there are many (the vast majority) Senators who are doing magnificent work. But some have been caught up in the rules or lack thereof, which has not only gotten them into trouble, but has besmirched the Red Chamber.

Senate Reform, or even abolishment, has been discussed for many years and by many leaders, but it involves constitutional change requiring certain provinces to approve. That creates a whole bunch of headaches for a government wanting to lead this effort, so it has never happened.

When former PM Stephen Harper wanted to reform the Senate by electing Senators and subjecting them to term limits, the Supreme Court of Canada quashed that effort, suggesting the only way to do it is to get the support of at least seven provinces representing 50 percent or more of the population.

Politically speaking, this was dead in the water. Given the issues of the economy, national security and other more pressing constituent-based matters, no one wanted to have this debate. So we are where we are as a result of the political climate.

But if there was ever a time to change things, it is now and with this Prime Minister.

 

Richard Mahoney:

First off, I can't let Tom leave anyone with the impression that I believe that thieves should not be prosecuted. What I believe is that the criminal process is not the way we deal or should deal with questionable expenses. And apparently the judge in Duffy's case agrees with me on this. My point is that just because someone thinks they might be "entitled" to a certain expense refund does not make them a criminal. And just because Duffy was acquitted of several crimes does not make him a good person or a responsible steward of public funds. It is possible to be innocent of a criminal offence, but guilty of submitting expenses that a reasonable, prudent public servant would not. The test is not: "is this a crime?" It is "is this appropriate? Should this be a public expense because I did it in the course of my work and it was a necessary expense to do my work?" And an error on that test does not necessarily make you a criminal. But it does mean your expense claim should not be paid.

The real challenge here is this: as Tom and I both point out, changes have been made in the administration of the Senate. This is good and will prevent much of this from happening again. It may also change the "I am entitled to this,” thinking obviously present amongst some Senators.

But the long term issue is: what do we do with a parliamentary chamber that is not elected but reviews, amends and passes legislation passed by our democratically elected House of Commons?

We are unlikely to change the Constitution of the country to make the place elected, at least in the near future. There is not the public will for that yet. So the question is: can we make it more legitimate by returning it to the "chamber of sober second thought" that reviews and sometimes improves legislation the Commons passes?

I think Trudeau's reforms are an important start and have already lead to a number of independent minded Senators, even Conservative appointed Senators, doing their jobs differently. This is a good thing and we should watch closely how it evolves over the coming months and years.  

 

Tom Parkin:

Unfortunately the Senate continues as an illegitimate force. We can see this in the current C-14 (the assisted dying legislation) debates that led to the blow-up in the Commons last week.

If the Senate were really the chamber of sober second thought, it would be amending C-14 to be consistent with the Supreme Court’s interpretation of the Charter on this matter – the Carter decision. But it seems Senators are very happy to continue to pass a law that offends the Court and the Charter.

Or, more concerning, it may be that, anticipating this orientation from the Senate, the Trudeau government decided to abandon the Commons Committee’s approach – which had some consensus and appeared to respect the Carter decision – and allied itself with a fringe Conservative minority report and against the Supreme Court’s Carter decision.

In either case, the role of Senate might rightly be described as “tyrannical.” After the government sidelined the Commons Committee on assisted dying and the opposition protested, the Trudeau government doubled down to try to have the bill in place by June 6. They responded with time-allocation and were preparing to go thermo-nuclear on the opposition with Motion 6. And had it not been for the PM’s outburst, they would have gotten it.

And after all this denial of the rights of the Commons, the bill must go through a redundant Senate process then back to the Commons again – just so the Senate can add its own anti-Carter amendments to the bill. What is the point of that?

If a non-elected, independent Senate is to prove of any added value to our system of democracy, it is exactly on a bill like C-14 that it can make its case.

Based on past behaviour, I am not optimistic. But I will withhold judgment for now and wait until it has acted.

 

John Capobianco:

I wouldn't go as far as saying it is an illegitimate force, Tom - although you are not alone in that thinking. Some of the administrative changes you mention are helping and what the PM has done since taking office, with the revamping of the process by which Senators are appointed, can play a positive role moving forward. But real changes are needed - systematic and not just administrative - for the legitimacy to be in full force.

As I mentioned earlier, these changes - real changes, as I believe was the Liberal campaign tag line - can happen with this PM. With the court cases over (except the charges against Senator Patrick Brazeau, which are still awaiting the court decision) and everyone in the Senate and outside of the Senate discussing how to reform the institution – the time is now.

This PM can lead the effort, and by doing so will create a significant legacy for himself as the only one to reform the Senate, where many before him have tried and failed. PM Trudeau has the credibility and the timing on his side.

When he was leader of Liberal party, and the “Senate scandal” was in full gear, he took it upon himself to kick the Liberal Senators from his caucus, thereby giving them independent status. That, along with the newer "more independent" Senators, can start to have a real effect in the Chamber.

But as you say, time will tell, and I think the public is tiring of this so the window of opportunity is limited.

 

Richard Mahoney is a lawyer with deep experience in politics and governance.  He is a former senior advisor to the Rt. Hon Paul Martin, a former Campaign Chair and President of the Ontario Liberal Party. John Capobianco is a Senior Partner and National Public Affairs Lead at FleishmanHillard. He has been a Conservative strategist with over 30 years of political activism at all three levels, including as a former federal Conservative candidate. Tom Parkin is a veteran NDP strategist and a frequent commentator on national issues. 

 

 

 

 

Posted date : May 25, 2016
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