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

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.

'That is a matter for the Senate'

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.

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— Senate lawyer Maxime Faille

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.

31 charges dismissed

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.