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Senate lawyers call Duffy lawsuit an overreach in bid to be stricken from case

Sen. Mike Duffy leaves the courthouse after being acquitted on all charges Thursday, April 21, 2016 in Ottawa. Lawyers for the Senate will go before an Ottawa judge this morning to argue that Sen. Mike Duffy can't sue the upper chamber over his dramatic and protracted suspension without pay five years ago. THE CANADIAN PRESS/Adrian Wyld
Sen. Mike Duffy leaves the courthouse after being acquitted on all charges Thursday, April 21, 2016 in Ottawa. Lawyers for the Senate will go before an Ottawa judge this morning to argue that Sen. Mike Duffy can't sue the upper chamber over his dramatic and protracted suspension without pay five years ago. THE CANADIAN PRESS/Adrian Wyld - The Canadian Press

By Jordan Press
THE CANADIAN PRESS

OTTAWA - Lawyers for the Senate warned of dire consequences for Canadian democracy as they laid out arguments Wednesday about why Sen. Mike Duffy shouldn't be allowed to sue the upper chamber over his dramatic and protracted suspension without pay five years ago.

Giving the go-ahead for the Senate to be part of Duffy's $7.8 million lawsuit would obliterate the protective walls aimed at ensuring the courts and Parliament don't overstep into the other's domain, they argued. They cited parliamentary privilege - a centuries-old right designed to protect legislators in the course of doing their jobs.

A lawyer for the Senate told the court that while parliamentary privilege may appear arcane, it cannot be taken for granted when looking at “recent events around the globe, near and far.”

Chipping away at that right could potentially unleash a flood of cases that would result in an unprecedented tearing down of the separation of powers between the government and the courts, Maxime Faille said.

The portion of the lawsuit against the Senate hinges on Duffy's arguments that senators acted unconstitutionally and violated his charter rights when they decided to suspend him without pay in 2013 over questioned expense claims.

Faille said the Senate, like the House of Commons, has the right to discipline its members free from judicial review.

“The Senate may be wrong, the Senate may be incorrect, but that is a matter for the Senate to determine,” he said.

“If we are to sort of crack open this exception - but if they really did for a really harebrained reason - then we have eviscerated parliamentary privilege and the courts would be sitting in regular review of (parliamentary) discipline actions.”

If the court agrees, Duffy would only be able to sue the federal government for the RCMP's actions during the investigation.

Duffy is seeking damages from the Senate and the Mounties in the wake of the high-profile investigation and suspension surrounding his expense claims, which culminated in a trial where he was acquitted on 31 charges in April 2016.

He filed his claim last August, claiming “an unprecedented abuse of power” when a majority of senators voted to suspend him without pay in November 2013 before any criminal charges were filed.

In July 2014, the RCMP charged him with 31 counts of fraud, breach of trust and bribery - all of which were later dismissed in a lengthy and dramatic court ruling.

The Senate restored Duffy as a member in full standing within hours of that verdict.

Senators who supported Duffy's suspension stuck fast to the argument that the Senate could govern its internal affairs and dole out administrative penalties without any worry about judicial review.

Duffy's lawyer will argue otherwise. Lawrence Greenspon has previously said parliamentary privilege applies to decisions and debates regarding legislation, not when punishing a fellow senator.

Greenspon wouldn't comment on the case as he entered the courthouse.

Federal lawyers representing the government and RCMP are also watching the proceedings. Duffy, however, was not in attendance.

Duffy was appointed as a Conservative by former prime minister Stephen Harper, but now sits as an independent.

Timeline

Dec. 22, 2008: Then-prime minister Stephen Harper announces Duffy's appointment to the Senate as a representative for Prince Edward Island. Duffy is sworn in the next month.

December 2012: Questions are raised about how much time Duffy spends at his declared primary residence in P.E.I., since he claims living expenses for his longtime Ottawa-area home.

Dec. 4, 2012: Duffy says he got an email from Nigel Wright, the prime minister's chief of staff, saying it appeared that Duffy's residence expenses complied with the rules.

Feb. 8, 2013: The Senate hires external auditing firm to review residence claims of Duffy and two other senators.

Feb. 22, 2013: Claiming confusion with the rules, Duffy pledges to pay back the expenses.

April 19, 2013: Duffy confirms he has repaid more than $90,000 in Senate housing expenses.

May 12, 2013: The RCMP says it will examine Senate expense claims.

May 15, 2013: The PMO confirms a media report that Wright personally footed the bill for Duffy's housing expenses because Duffy couldn't make a timely payment.

May 28, 2013: Senate internal economy committee holds a public meeting to review Duffy's travel expenses. Senate finance officials say they've detected a pattern that concerns them. The committee votes to send the matter to the RCMP.

June 13, 2013: The RCMP confirms it has launched a formal investigation into Wright's involvement.

Oct. 17, 2013: Claude Carignan, the government's new leader in the Senate, introduces motions to suspend Duffy, Sen. Pamela Wallin and Sen. Patrick Brazeau from the Senate over questioned expenses. The motions call for the three to be stripped of their pay, benefits and Senate resources.

Oct. 22, 2013: In an explosive speech in the Senate, Duffy accuses Harper's office of orchestrating a "monstrous fraud" aimed at snuffing out controversy over his expenses.

Nov. 5, 2013: Senators vote to suspend Brazeau, Duffy and Wallin without pay - but with health, dental and life insurance benefits intact - for the remainder of the parliamentary session.

July 17, 2014: Duffy is charged with 31 counts of fraud, breach of trust and bribery.

Sept. 23, 2014: A trial date is set for April 7, 2015.

April 7, 2015: The trial begins with Duffy formally pleading not guilty to all charges.

May 14, 2015: The Senate appoints Ian Binnie, a retired Supreme Court of Canadian justice, as a special arbitrator for questioned expenses.

June 4, 2015: Auditor general Michael Ferguson releases an audit which flags some senators for questionable expenses.

Aug 21, 2015: Twitter says the Duffy trial is becoming the most tweeted-about election topic.

Aug. 26, 2015: Trial adjourns to November.

Dec. 8, 2015: Duffy takes the stand for six days of testimony and two days of cross-examination.

March 21, 2016: Binnie releases his report. He says in 10 of 14 cases of questioned expenses, he reduced the total. He says he imputed no bad motives to any of the senators.

April 21, 2016: Duffy is acquitted on all counts.

May 2, 2016: Duffy returns to Parliament Hill

July 25, 2016: The Senate says it will claw back $17,000 in expenses from Duffy.

Aug. 24, 2017: Duffy announces he is suing both the Senate and the government of Canada over the actions of the RCMP.

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