Senator Mike Duffy Can’t Sue Senate Over Suspension

(“P.E.I” Senator Mike Duffy, textbook case of “pig at the trough”)

(Pamela Wallin, Patrick Brazeau, Mike Duffy, all temporarily suspended from the Canadian Senate)

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An Ontario Judge has ruled that Mike Duffy cannot sue the Senate for a decision that caused him to be suspended without pay for almost 2 years.

CLICK HERE, for the actual ruling from Justice Sally Gomery. (Quotes in bold/italics. Commentary in regular font).

CLICK HERE, for the original verdict, acquitting Duffy.

[1] Senator Michael Duffy is suing the Senate of Canada for over $7 million in damages.

[2] On November 5, 2013, the Senate voted to suspend Senator Duffy based on a report from its standing committee on Internal Economy, Budgets and Administration (the “CIBA”). This CIBA report concluded that he had violated rules on living and travel expenses. Senator Duffy was later criminally charged with breach of trust, fraud and accepting a bribe. On April 21, 2016, after a trial that lasted more than a year, he was acquitted of all charges. Justice Vaillancourt, the judge who heard the criminal trial, concluded that the Prime Minister’s Office (“PMO”) directed one or more senators to interfere with an audit of Senator Duffy’s expenses. 2018 ONSC 7523 (CanLII) He also concluded that, in making living expense claims, Senator Duffy “committed no prohibited act, violated no Senate rules”, and neither engaged in criminal fraud nor intended to do so.

[3] In his lawsuit, Senator Duffy claims that the CIBA report and the Senate’s decision to suspend him were politically motivated, unconstitutional, procedurally unfair and contrary to his rights under the Canadian Charter of Rights and Freedoms1. Given the judge’s findings when he was acquitted of criminal charges, Senator Duffy argues that actions by various senators and the Senate as a whole were clearly wrong and unlawfully deprived him of salary, allowances and pension contributions. He also says that, since he was acquitted and the suspension was lifted, the Senate has once again unfairly denied him reimbursement for further legitimate expenses. He seeks compensation for the amounts he says he is entitled to as well as compensatory and punitive damages.

[4] This matter is before me now because the Senate says that Senator Duffy’s action should be dismissed. The Senate contends that the lawsuit cannot proceed because the actions that Senator Duffy seeks to challenge fall squarely within the scope of parliamentary privilege. Determining the questions that arise in Senator Duffy’s lawsuit would accordingly require a court to do exactly what parliamentary privilege is designed to prevent.

An interesting approach. While Duffy was ultimately acquitted on the criminal charges, the Trial Judge didn’t exactly exonerate him completely. More on that later. And this deflection and projection does not change the fact that there was considerable grounds for the suspension. This reads like an attempt to cash in.

[7] For the purpose of a motion like this one, I must assume that all of the factual allegations in Senator Duffy’s statement of claim are true. He makes many allegations about the improper motivations of various senators and the denial of any due process. But the core allegation, what he says entitles him to damages, is that the decisions by the CIBA and the Senate to suspend him and to deny his claims for compensation were unlawful and unfair. I must determine whether these decisions are protected by parliamentary privilege and therefore shielded from any review by this court.

This is an important distinction to make here: the Judge is saying that it must be “assumed” for the purposes of the motion that the factual allegations are true. This is not to claim that they actually are.

[8] I conclude that they are. The Senate enjoys certain categories of privilege by virtue of the Constitution Act, 1867. 6 Four types of privilege prevent a court from reviewing the actions by the Senate at issue in this case.

[9] First, parliamentary privilege extends to decisions by the Senate to discipline its own members. The privilege clearly applies to decisions about whether a senator should be suspended or expelled. In some cases, a court may review disciplinary decisions with respect to employees of a legislative body, if the management of such employees does not fall within the scope of what is necessary to protect the independent functioning of that body. There is however no question that the privilege prevents judicial review of discipline or suspension of a member of the legislature itself.

[10] Second, parliamentary privilege applies to the Senate’s management of its internal affairs, including the allocation and use of parliamentary resources. This privilege extends to decisions on the approval of expenses claimed by senators. I find that the privilege applies to decisions by an internal committee of senators, such as the CIBA, with respect to the allocation or withholding of parliamentary resources to a senator.

[11] Third, Parliament has exclusive control over, and privilege with respect to, its own debates and proceedings.

[12] Finally, parliamentary privilege protects freedom of speech in the Senate. Allegations in a statement of claim about what was said in parliament must be struck, because statements in parliament cannot be reviewed by a court. Neither a senator nor a third party can be compelled to testify in court about anything they said or did in the course of Senate proceedings. Transcripts of proceedings, and reports produced by or commissioned for the Senate, can likewise not be produced in court proceedings. The Senate’s failure to object to disclosure of some evidence that might have been subject to privilege during Senator Duffy’s criminal trial does not mean that it has relinquished its right to invoke privilege in this case.

The Judge is setting out the reasons here: The Senate is allowed under the law to discipline its own members. The ruling will go on to cite many examples and circumstances, but this will suffice for now.

[13] Senator Duffy contends that the application of parliamentary privilege in this case leaves him without any meaningful remedy. He says that he cannot hope to get justice from the very body that has treated him so badly in the past, and that the courts should not allow Charter violations to go unchecked, particularly in circumstances where those violations arise from interference by one branch of government (the PMO) with another (the Senate).

[14] I am however obliged to respect constitutional imperatives. Allowing a court to revisit the Senate’s decisions at issue here would interfere with the Senate’s ability to function as an independent legislative body, equal to other branches of government. These decisions, as well as the Senate record relevant to them, are protected by parliamentary privilege and are accordingly immune from judicial review or reconsideration. Since the actions at issue fall within those actions protected by parliamentary privilege, I cannot give any consideration to whether they were wrong or unfair or even contrary to Senator Duffy’s Charter rights. All of these are determinations that the Senate, and the Senate alone, can make. The Senate’s motion to dismiss Senator Duffy’s action against it is therefore granted.

Interesting, that Duffy has been in the Senate since 2009, but seems to know so little about how it works.

From the Ontario Rules of Civil Procedure, 21 and 25.11:


21.01 (1) A party may move before a judge,
(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,
and the judge may make an order or grant judgment accordingly. R.R.O. 1990, Reg. 194, r. 21.01 (1).

STRIKING OUT A PLEADING OR OTHER DOCUMENT
25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,
(a) may prejudice or delay the fair trial of the action;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the court. R.R.O. 1990, Reg. 194, r. 25.11.

The Senate invokes 2 sections of the Ontario rules, claiming that since Parliamentary privilege applies that the Senate should not be a defendant in the case.

[25] Over time, the concept of parliamentary privilege was expanded to protect not only speech and procedures, but any action within parliament over which it must necessarily have exclusive control, as an independent and coequal branch of government. Parliamentary privilege is accordingly:
the necessary immunity that the law provides for Members of Parliament … in order for these legislators to do their legislative work. It is also the necessary immunity that the law provides for anyone while taking part in a proceeding in Parliament … Finally, it is the authority and power of each House of Parliament … to enforce that immunity.

Section 18 of the 1867 Constitution Act states:


Privileges, etc., of Houses
18. 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

In one context, it is nice that the Court here does apply and uphold some separation between branches of government.

However, from a taxpayer who likes accountability from public officials, there is another viewpoint. Many would like to see the truth of the matter fleshed out, something that hasn’t really happened. However, this seems to be a case of “procedure over facts”.

It will be interesting to see what happens with the RCMP, as they will be all too happy to throw Duffy under the bus to show they acted properly.

Backstory Events Leading Up to Lawsuit Against RCMP and Senate
In November 2013, Conservative Senators: 1/ Patrick Brazeau; 2/ Pamela Wallin’ and 3/ Mike Duffy were all suspended from the Canadian Senate for 2 years without pay, over illegal spending.

Mike Duffy faced 31 criminal charges, including: 15 counts of fraud, 15 counts of breach of trust, and 1 count of bribery, (for allegedly receiving $90,000 gift to pay back expenses).

Brazeau and Liberal Senator Mac Harb were charged with breach of trust and fraud, (sections 122 and 380 of the criminal code)


Bribery of judicial officers, etc.
119 (1) Every one is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years who
(a) being the holder of a judicial office, or being a member of Parliament or of the legislature of a province, directly or indirectly, corruptly accepts, obtains, agrees to accept or attempts to obtain, for themselves or another person, any money, valuable consideration, office, place or employment in respect of anything done or omitted or to be done or omitted by them in their official capacity, or
(b) directly or indirectly, corruptly gives or offers to a person mentioned in paragraph (a), or to anyone for the benefit of that person, any money, valuable consideration, office, place or employment in respect of anything done or omitted or to be done or omitted by that person in their official capacity.

Breach of trust by public officer
122 Every official who, in connection with the duties of his office, commits fraud or a breach of trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person.
R.S., c. C-34, s. 111.

Fraud
380 (1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,
(a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars; or
(b) is guilty
(i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(ii) of an offence punishable on summary conviction,
where the value of the subject-matter of the offence does not exceed five thousand dollars.

Pamela Wallin was never actually charged, but forced to pay back for her actions, despite over $100,000 in illegal expenses. In a bizarre twist, it cost $127,000 to audit Wallin’s spending.

Duffy was acquitted in a very bizarre ruling in 2016. More on that later.

This most likely influenced the decision to drop the charges against Harb in May 2016, and later Brazeau in July 2016.

Although Duffy was eventually acquitted of criminal wrongdoing, him returning to the Senate has left a bad taste in many people’s mouths.

Nonsensical Acquittal by Vaillancourt At Trial

CLICK HERE, for the text of the ruling.

That is actually its own article, CLICK HERE. It is too long to do properly here.

Made in Court (Review)

(Supreme Court Decisions That Shaped Canada, by Richard Pound)

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This is a case-law book which has a collection of Supreme Court of Canada decisions over the last century.

Each case is covered in about 5-6 pages. It combines actual quotes from the Court rulings along with commentary on the reasoning. The reviews directly come from the rulings, and are not filtered through media bias.

Certainly, everyone has their own opinions as to which cases should be included, but Mr. Pound selects 57 cases from a wide cross section of law. Here are a few of them

Juries decide the Facts, Judge Determines the law,
R v. Latimer, 2001

Marital Breakdown, Wives Without Rights
Murdoch v. Murdoch, 1973

Fighting For Language Rights
Attorney General of Quebec v. Blaikie et al, 1979

The Right to Die: Beginning a Legal Debate
Rodriguez v. British Columbia, 1993

Of course, the full text of any of the decisions can be researched using CanLII.

This is only a handful, but the book contains 57 cases, with a good mix of quote and analysis. Not overwhelming to digest individual cases. All in all, a great reference book.

Privacy Commissioner, Banks, Throw StatsCan Under the Bus

(The issue of bank data being seized is raised in Parliament)

This article was released by Global News on October 26, 2018, and CanuckLaw covered it here on October 28. In short, Statistics Canada wants to seize the banking information of 500,000 Canadians (each year), and do it without the knowledge or consent of Canadians.

(at 1:40 in the video) Statistics Canada representative James Tabreke in a very blunt way claims that this is a ”new way of getting economic data to make government decisions”. He also claims that StatsCan is being open with the public, and that the Canadian Banks were aware of this.

(at 2:32 in the video) Claim that the Privacy Commissioner has okayed the project.

Prime Minister Trudeau, in his typically partisan manner, defended the data seizure. Of course blamed Stephen Harper for eliminating the long form census in 2010. He claimed StatsCan was working closely with the Privacy Commissioner.

Now the lies get exposed:
First, Trudeau is distorting the truth with reference to Harper gutting the long-form census. In the original video, Statistics Canada claimed bank seizure was a move done to replace the long form census. So Harper cancelling the LFC in 2010 was actually irrelevant, as StatsCan was going to pull this stunt anyway.

Second, StatsCan claims that they have been open with what they are doing. Yet, these talks have been going on for a year now without the public’s knowledge.

Third, the C.B.A. (Canadian Bankers Association) has publicly objected, claiming they thought StatsCan was just in an exploratory stage. C.B.A. says they didn’t know StatsCan was going ahead with this, and says they will oppose the measure. Here is their statement:

Statement from the Canadian Bankers Association

Protecting the information privacy of their valued customers is a top priority for banks in Canada. Banks believed this proposed data acquisition project was still in the exploratory stages and were not aware that Statistics Canada was moving to compel disclosure of this information. No customer transaction data or other personal information has been transferred to Statistics Canada under this request. The CBA is working with members to understand the nature of this request and next steps.

Fourth, the Privacy Commissioner, seen here appearing before the Senate Committee on Banking, Trade and Commerce, refutes the claim that he ”okayed the move”. Instead, he stated that he does not have the authority to approve such a thing, and is only able to provide general advice on privacy laws.

Fifth, the Privacy Commissioner claims he was unaware until very recently that Statistics Canada that they wanted to do this to 500,000 Canadians. He says numbers were not discussed. In the hearing he states, ”Proportionality is very important.”

Sixth, the Privacy Commissioner states he was unaware or just how much information would be seized by such a move.

Seventh, the Privacy Commissioner admits that StatsCan was not nearly as transparent as it could have been.

Eighth, and this is a glaring omission: StatsCan doesn’t say how this massive intrusion would actually help. There are just vague references to ”economic information”.

Certainly, that 15 years of credit card data had recently been seized also doesn’t sit well with many Canadians.

Now that formal complaints against this measure have been filed with the Privacy Commissioner, there is no longer the option of just giving general legal information. At this point, an investigation is mandated by law.

The proposal appears to be dead in the water, as public outrage and the threats of legal action are forcing StatsCan to back off. But it will be interesting to see if the Federal Liberals continue to support this Orwellian measure.

Note:
Statistics Canada, Equifax, Transunion, the C.B.A., and the major banks have all been contacted by CanuckLaw for comment. Any responses will be posted here as updates.

Canadian Banker’s Association rep Aaron Boles
Thanks, Alex.

The most important take-away from yesterday is that StatsCan is suspending any movement on its proposed project until the Office of the Privacy Commissioner has completed its report, which we understand will be January at the earliest. We were firm in our appearance before the Senate Committee that all options are on the table in terms of defending the privacy and security of bank customers’ personal information and transaction records. Until the OPC report is tabled and StatsCan responds about what it proposes to do thereafter, there’s little point in speculating on how information on spending habits would be collected, if at all.

Best,

AEB

From RBC
Hi Alex – please refer to the CBA for comment on this.

Best,
AJ

AJ Goodman I Director, External Communications, Personal & Commercial Banking I

From TD Canada
Hi Alex,

We refer your inquiry to the CBA, however can tell you that TD takes the trust our customers place in us extremely seriously and has not agreed to share customer data.

Thanks,

Alison

From Statistics Canada
Hello,

“I can assure you that we will not proceed with this project until we have addressed the privacy concerns expressed by Canadians by working cooperatively with the Privacy Commissioner and with financial institutions.”

Anil Arora, Chief Statistician of Canada (Standing Senate Committee on Banking, Trade and Commerce, November 8, 2018)

Thank you,

Laurence Beaudoin-Corriveau

Manager (Acting), Media Relations, Communications
Statistics Canada, Government of Canada

laurence.beaudoin-corriveau@canada.ca / Tel: 613-951-2599

From Equifax
Hello Alex.

In our database, Equifax Canada has information on ~27M Canadian consumers, which we maintain as a registered Canadian credit bureau in accordance with applicable credit reporting and privacy laws. Statistics Canada has never directed Equifax Canada to provide them with, and subsequently, Equifax Canada has not provided to Statistics Canada all of its data pursuant to its enabling legislation.

In any instance where a regulated body relying on legislative authority requests information from Equifax, our standard process is to conduct a review against our internal data governance and security processes, as well as to consider applicable law prior to disclosure.

We don’t have any information on the rumour you mentioned about credit data from 15 years ago.

Media Relations | Equifax Canada Co.

5700 Yonge St., Suite 1700, Toronto, Ontario, Canada M2M 4K2

Weaponizing the Human Rights Codes and Refugee Boards

(This is criminal, not civil, but enjoy anyway)

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Need some extra cash? Don’t feel like working hard? Well, here at CanuckLaw, we have the solution for you.

Simply make some vague claim about: (a) being offended; (b) having hurt feelings; (c) loss of self confidence, and you will be well on your way to making your next year’s salary virtually overnight.

Need that new sports car? Or have a girlfriend with really expensive taste? Now you don’t have to feel like a cheapskate. Just file a human rights complaint, and that cash is as good as yours. Just appear before the tribunal and cry up a storm.

In court, you will be forced to ”prove damages” and likely ”hire a lawyer”. Not the case here. Just say you are offended, and the Province will pick up your tab. The slimy accused will still have to pay his bill though.

And if you want to come to Canada, but don’t qualify, then just claim to be oppressed and fearful of persecution. And since it’s all in your head, no proof necessary.

All joking aside, the Provincial Human Rights Tribunals are in fact a very lucrative way to cash in. We will explain here.

One interesting case, is Sanford v. Koop, 2005 HRTO 53 (CanLII) at paras. 34-38. CLICK HERE for a link to it. It sets out a disturbingly vague, yet extensive list which people can get extra money under. Although this is Ontario, other provinces have very similar guidelines. From paragraph 35:

[35] The Commission provided a number of cases which set out the criteria to be used in assessing the appropriate quantum of general damages. These factors include:

• Humiliation experienced by the complainant
• Hurt feelings experienced by the complainant
• A complainant’s loss of self-respect
• A complainant’s loss of dignity
• A complainant’s loss of self-esteem
• A complainant’s loss of confidence
• The experience of victimization
• Vulnerability of the complainant
• The seriousness, frequency and duration of the offensive treatment

See: Baylis-Flannery v. DeWilde (No.2) (2003), 48 C.H.R.R. D/197 (total general damages of $35,000); Arias v. Desai, (No.2) (2003) 45 C.H.H.R. D/308 (HRTO) (total general damages of $25,000); Curling v. Torimiro (No.4) (2000), 38 C.H.R.R. D/216 (Ont. Bd. Inq.) (total general damages of $21,000); Ketola v. Value Propane Inc. (No. 2), (2002), 44 C.H.H.R.R. D/37 (Ont. Bd. Inq.) (total award of $20,000 for general damages and mental anguish); deSouza v. Gauthier (2002), 43 C.H.R.R. D/128 (Ont. Bd. Inq.) (total award of $25,000 for general damages and mental anguish)

[36] The Tribunal accepts the submissions of the Commission. Considering the evidence in this matter, and the similarity of the facts in this case with the facts in the cases cited by the Commission, the Tribunal awards $25,000 in general damages.
Damages for Mental Anguish for the Reckless and Wilful Infringement of the Complainant’s Rights

[37] Pursuant to Section 41(1)(b) of the Code the Tribunal may award damages of up to $10,000 for mental anguish, injury to dignity, feelings and pride, where such infringement has been engaged in wilfully or recklessly.

[38] The Commission identified the factors used to assess mental anguish damages pursuant to Section 41(1)(b):

Yes, you are reading that correctly: having hurt feelings can get you lots of money, according to the Ontario Human Rights Tribunal. In fact, they even give a price range.

Prospective Canadians: now, if waiting years, spending money, and doing paperwork are not your thing, don’t worry. Just hop a place to the U.S. with a tourist visa,seen here, walk across the Canadian border, and get yourself detained. Free housing, food and medical care while you wait for your claim.

Immigration and Refugee Boards (IRB) and Human Rights Tribunals (HRT) are clogged with bogus cases. In fact, a quick search reveals thousands, and those are just the ones that are published. Here are some cases pulled at random.

(1) CLICK HERE for an attempt to silence speech critical of Islam.

(2) CLICK HERE for getting a job in a restaurant, then refusing to do it later based on religious grounds.

(3) CLICK HERE for a funny one, taking action against each other for discrimination.

(4) CLICK HERE for a member of the Islamic Salvation Front wanting refugee status.

(5) CLICK HERE for a claim that asking a prospective tenant for a 12 month lease is discrimination.

(6) CLICK HERE for a member of Hamas (a terrorist group), wanting to be declared a refugee.

(7) CLICK HERE for an unsubstantiated claim of fear of safety.

(8) CLICK HERE for a member of the Students Islamic Movement of India, with at least 6 arrests, wanting asylum based on persecution.

(9) CLICK HERE for a woman seeking asylum due to an interfaith marriage gone wrong (Islam and Hindu)

(10) CLICK HERE for a blind man being denied to bring his guide dog due to cab driver’s religion.

(11) CLICK HERE for a judicial review (and a well cited case) of an asylum decision.

(12) CLICK HERE for taking Rebel Media to he cleaners for offering commentary deemed offensive.

(13) CLICK HERE for a claim about saying mean words to someone.

http://canlii.org is a free site, available to anyone. You can do actual legal research from here, and research decisions from all over the country. Thing is, no lawyer is necessary.