Lawyers for the Senate will go before an Ottawa judge Wednesday morning to argue that Sen. Mike Duffy can’t sue the upper chamber over his dramatic and protracted suspension without pay five years ago.
Duffy is seeking more than $7.8-million in damages from the Senate and the RCMP 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.
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.
The Senate will argue that the court has no jurisdiction to judge the decision senators made to suspend Duffy without pay for almost two years, citing the shield of parliamentary privilege — a centuries-old right designed to protect legislators in the course of doing their jobs.
Allowing the lawsuit to proceed against the Senate would “constitute an impermissible intrusion into the independence of the legislative branch of government and violate the fundamental constitutional principle of the separation of powers,” reads a notice of motion filed in Ontario Superior Court earlier this year.
If the court agrees, Duffy would only be able to sue the federal government for the RCMP’s actions during its investigation.
The former newsman filed his claim last August, claiming “an unprecedented abuse of power” when a majority of senators voted to suspend him without pay before any criminal charges were filed.
Duffy was suspended in November 2013. In July 2014, the RCMP charged Duffy with 31 counts of fraud, breach of trust and bribery — all of which were later dismissed in a lengthy and dramatic ruling in April 2016.
The Senate restored Duffy as a member of the Senate 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.
The hearing is scheduled to take two days in an Ottawa court.
Duffy was appointed as a Conservative by former prime minister Stephen Harper, but now sits as an independent.