Is the Senate creating a double standard with expense scandal arbitrator?

When Auditor General Michael Ferguson delivers his report on senators' spending next week, it won't be the final word on who played by the rules and who didn't.

That decision will rest with retired Supreme Court justice Ian Binnie, who was announced Tuesday as the special arbitrator for any disputes between the auditor general's findings and senators, including those who could face criminal investigation over their expense claims.

• 10 senators to be referred to RCMP, AG Michael Ferguson says
• Ian Binnie, ex-Supreme Court justice, to arbitrate Senate expense claims

The new Speaker of the upper chamber, Leo Housakos, says it's all about guaranteeing fairness.

"Let's wait for the auditor general's report to come out," Housakos told reporters Tuesday. "But every single case the auditor general identifies where there are disagreements will have the arbitration process at their disposal, including those that will be, I assume, referred to the RCMP or other authorities."

That option, of course, was not available to former Conservative senators Mike Duffy, Patrick Brazeau and Pamela Wallin. The Senate voted in November, 2013 to suspend each of them without pay before a criminal investigation into their expense claims was even complete.

Duffy and Brazeau were ultimately charged months later. Wallin hasn't been charged, and may never be.

Ferguson confirmed to CBC News on Tuesday that about 10 cases of questionable spending should be referred to the RCMP for investigation. Another 20 former and current senators have what he called "issues."

But a number of legal experts told CBC that treating current senators whose spending is referred to the RCMP differently from Duffy, Brazeau and Wallin would suggest preferential treatment.

The three were offered no intermediate step of appeal. No chance to make restitution to mitigate any penalty.

"How do you justify it?" Rob Walsh, the retired law clerk of the House of Commons, told CBC News. "The onus is on you to explain why you are choosing to do it differently and that would a difficult thing to explain given what you did before."

One answer may be that the new Speaker simply misspoke.

Another might be that, unlike Duffy, Wallin and Brazeau, who were all high-profile appointments of Stephen Harper, there's no political imperative to punish other senators with no regard for procedural fairness and due process.

Arbitration provided by a respected jurist is far removed from the arbitrary process imposed on the suspended three by the Conservative majority in the Senate.

But that's not the only difference in how the Senate will respond to Ferguson's report.

Regaining confidence

Housakos is promising Binnie's findings will be made public, saying the goal is to ensure Canadians regain their sense of confidence in the Senate.

He didn't mention that the Senate is now fighting efforts by Duffy's lawyer to compel the upper chamber to release the secret 2013 internal audit on the residency status of all senators, claiming parliamentary privilege.

Duffy's trial has also heard that some Conservative members on the Senate committee on internal economy worked with the prime minister's office to water down the committee's report into Duffy's expenses.

New Democrats sought to highlight the apparent double-standard in question period on Tuesday, but Harper's parliamentary secretary Paul Calandra rejected the suggestion.

"If any senator is found guilty or has used money inappropriately that senator should pay it back. And if they have done something criminal they should pay the full consequences for that," he said.

Binnie told CBC News in a statement there's not much to say about the process at this point, and the committee on internal economy and any senator referred to him will have a say on how they think he should proceed.

"As to finality, the Senate press release stated that my decisions… will be referred to the committee of internal economy for 'execution' — I take execution to mean implementation not re-adjudication," Binnie said.

Binnie also says the RCMP investigation would have priority over arbitration.

"Every citizen has the right to due process," the statement said. "The Senate arbitration process ensures this."

Every citizen and every senator, it seems, other than Duffy, Brazeau and Wallin. Other senators may face charges, but not the same bum's rush from the red chamber that their now suspended colleagues were given.