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Mike Duffy been cleared of 31 charges by a judge after being suspended from the Canadian Senate. But now that he's been found not guilty, should Duffy receive back pay for that time away? Richard Mahoney, John Capobianco and Tom Parkin debate that in the ONW Salon.

 






Tom Parkin:

Was Mr. Duffy a victim to whom we now have the duty to make whole? Um, no.

Let's talk about reality for a moment - the reality of a normal working person who did what Mr. Duffy did. Run down the list of ways in which Mr. Duffy took from his employer in unethical ways. How he lowered the standard of his business.

If Mr. Duffy worked anywhere else but the Senate, he'd be out on his butt. That the only standards that seem to apply to a Senator are the criminal code is hardly a defense for him.

But then again, I believe that not one a single person in the Senate is owed anything. And it seems many Canadians agree with me. A new Angus Reid poll shows Canadians want dramatic action to end or radically reshape the Senate. Mr. Trudeau's tinkering may be mildly good, but it advances a couple inches when Canadians want to trek some miles.

Angus Reid shows that two-fifths of Canadians want to abolish the Senate. Another similar sized group wants real reform. Amazingly, 71% said if it requires opening our constitution to fix this Senate situation, they're ok with that. Canadians are far bolder than timid Mr. Trudeau.

This phase of the Duffy case brings us back to some fundamental questions. What is the role of an appointed chamber in creating laws in a free and democratic society? I say none. Two other parties disagree.

 

John Capobianco:

Show of hands for those who thought the Senate issue would go away with the conclusion of Senator Duffy’s trial. Hmmm, I don’t see many hands.

The Senator was cleared of all criminal charges that were laid against him by the RCMP – 31 in total, consisting of bribery, fraud and breach of trust. So you would think it would be over, and the Senate could get back to rebranding itself as a legitimate legislative branch of government, hoping Canadians would get over the last three-plus years of Senate controversy.

Not so fast.

With Senator Duffy going back to the Senate this week, the issue many are pondering is whether he should get the pay he was prevented from getting while he was suspended from the Senate. The issue, as with everything else Senate-related, is not an easy one to resolve and depends who you ask – everyone has a contrary view on this, including the Senators themselves.

The Senate seems pretty split on whether to give the Senator his pay, with the Conservative Senators making the point that Senator Duffy was suspended on a disciplinary sanction for negligence in the management of his office, and that the criminal charges were separate from this. So they say "No" to the Senator getting his pay.

This issue will be one of perception - for Senator Duffy, since he will be the one who will have to ask for it, and for the Senate, since it will have to debate this issue and rehash all that is wrong with that institution yet again.

 

Richard Mahoney:

I agree with just about everything Tom said (note to self: this happens too often!)

I would add that it is important not to confuse what he was in court for - criminal charges - and what he was disciplined by the Senate for - bad behaviour. At least, we had better hope that is why his colleagues disciplined him. His Conservative colleagues in the Senate first rallied around him, tried to protect him, then worked with Harper's PMO to pay him back, and finally, tried to influence an arm's length audit to protect him.

Remember: Harper had appointed him as a Senator from PEI. They advised him on how to claim his PEI cottage as his residence, and directed him to travel the country raising money and working for the Conservative Party, all while expensing his way through. It was only after the Nigel Wright $90,000 cheque became public - and a bigger scandal erupted - that Duffy made his famous speech against the "boys in short pants in the PMO" who forced him to take the money. And it was only then that his former friends in the Conservative Party turned on him and led the efforts to suspend him without pay.

Our first question should be to them: on what basis did you suspend Duffy? Based on what principles of behaviour? Did they move to suspend him simply because they wanted to be rid of him? If so, they have a big problem on their hands.

That said, I suspect that many in the Senate, including Senate Liberals and independent Senators, moved to suspend him because they wanted to discipline him for his bad behaviour and expense account abuse. If that is the case, there is no reason to think that the Senate would change its view now that the criminal trial is over and Duffy was acquitted. The Senate was within its rights to suspend a member.

 

Tom Parkin:

Glad to hear, Richard, that you agree that Trudeau's timid Senate reforms don't go far enough, and being ruled by an unelected Senate should be a non-starter in 2016. Because here's the ridiculousness that Mr. Trudeau's timidity has brought us to: he will now tell us who will be the government whip in the Senate. That's right, the PMO's strong arm in the chamber that Mr. Trudeau tells us should be non-partisan.

And to add to the craziness, by throwing the Liberal Senators out of his caucus, where there is some shared accountability to Canadians who elected at least some of the Liberal members of caucus (i.e. the MPs), new Senators have no accountability to anyone. This might have been ok before the Upper and Lower Canada rebellions. How is this possible in a democratic country in 2016?

I have no idea how any of this will end up. But I fear that when the next scandal comes - and it will, sure as the sun will rise - it will be even harder to dislodge an errant Senator.

So I will wager you a little sum that this story is not over and the tide of Canadians wanting bold action to get rid of an archaic, non-democratic Senate will continue to build.

 

John Capobianco:

Richard, we all appreciate the history lesson on what happened with Senator Duffy and making it sound as if the problems of the Senate were the Conservatives alone, when in fact the Liberals of the past had their issues with the Senate. I remember a certain Liberal Senator who spent most of his time in Mexico while he was collecting taxpayers hard earned money via his Senate salary.  So pot, kettle, black.

As well, it was P.M. Trudeau who was so disgusted with what was happening in the Senate on all sides that he kicked them out of the Liberal caucus (this is where I agree with Tom's point).

But I digress. The issue of whether Senator Duffy will get his pay reimbursed or not will be debated I'm sure for some time as various Senators dig their heels in - with some doing so on principle.

The issue of the Senator's suspension being the result of his "negligence in the management of his office" as some Senators say, or whether it was related to the criminal charges that he was cleared of, is at the crux of why we are still talking about Senator Duffy. He has spent the last three years having to deal with this issue before the courts and he was cleared - he is now back in the Senate hoping to get on with his work. It really is up to him whether he will ask for the money or let it go and get on with his Senate work and with his life.

 

Richard Mahoney:

Tom's efforts to try to turn this into a criticism of Justin Trudeau's reforms are the political equivalent of a "Hail Mary" pass. On this we disagree, and profoundly. If Tom were less partisan, he would allow that Trudeau has done something courageous on the Senate. He removed all Senators from his caucus, and immediately. He did what no Prime Minister before him has done - he moved to reduce his power and authority over the Senate.

In one move, without having to drag us through protracted constitutional negotiations, he began to change the place. By the end of this year, a majority of Senators will not be part of any party caucus. That is because of Justin Trudeau's changes. It is the single biggest change in the Senate in our almost 150 year history.

Tom and others now criticize the Prime Minister for taking reasonable steps to try to get government legislation passed because the Prime Minister is naming representatives in the Senate whose job it will be to help persuade all Senators of the merits of government legislation. Really? Do you think the government should not even try to pass legislation? That is an important part of his job - to bring forward laws that are in the country's best interests, and to try to convince Parliament to consider, possibly amend and then pass those laws. It is passing ridiculous to suggest he do otherwise.  

In the end, the combination of Trudeau's changes to the Senate, restoring it to its role as a "chamber of sober second thought," and the reforms brought about by the scandal, are the beginning of a long overdue, deliberate change in the way the Senate works. And that is a very good thing.

 

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 04, 2016
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