Sen. Mike Duffy loses appeal over lawsuit seeking damages from Senate

OTTAWA — Sen. Mike Duffy has lost his bid to overturn a court decision blocking him from suing the Senate for millions of dollars over his suspension without pay.

The Ontario Court of Appeal upheld a 2018 lower court ruling that said the Senate’s decision to suspend Duffy is protected by parliamentary privilege.

In a unanimous ruling released Friday, the three-judge panel said the courts do not have jurisdiction to rule on matters decided by the Senate.

“They may be adjudicated only by the Senate itself,” Justice Mahmud Jamal wrote in the decision. 

Duffy’s lawyer, Lawrence Greenspon, said the ruling effectively means the Senate is above the law. He said Duffy will consider seeking leave to appeal it to the country’s highest court.

“In these troubled times it’s especially important to ensure that the government is not above the law and that’s what has not happened in the Court of Appeal decision and which is why we’ll be considering over the coming days … an application for leave to appeal to the Supreme Court of Canada,” he said Friday in an interview.

The case is part of the Prince Edward Island senator’s efforts to receive $7.8 million in reimbursement and damages from the Senate, RCMP and the federal government.

Duffy was suspended without pay for nearly two years over the Senate expenses scandal, for which he was ultimately acquitted of 31 criminal charges in 2016.

Greenspon had argued the decision to suspend Duffy in November 2013 came at the direction of then-prime minister Stephen Harper’s office, making it a politically motivated decision that forfeited the Senate’s immunity.

Duffy was named to the Senate on the advice of Harper in 2008. He left the Conservative caucus in May 2013 and now sits with the Independent Senators Group.

In his submissions, Greenspon said Harper’s office threatened Duffy that he’d be kicked out of Senate unless he admitted to inadvertently abusing his expense account and repaid $90,172 in housing expenses.

The threats, the lawyer argued, amounted to extortion and it should be fundamental to the rule of law that courts are able to review illegal conduct within the Senate, even in matters of privilege.

But Jamal said Duffy’s allegation of illegal conduct by the Senate involves no “ordinary crime,” and that any alleged interference by the Prime Minister’s Office in the Senate’s decisions was “integrally connected with proceedings in Parliament.”

“Raising these issues before the courts would unavoidably call into question the disciplinary and internal decisions taken by the Senate and the (Senate’s internal economy committee) on matters that ordinarily fall within established categories of parliamentary privilege,” the ruling stated.

The judges said all of Duffy’s arguments fall within the scope of that Senate immunity and “the courts therefore lack jurisdiction to adjudicate these allegations.”

“Sen. Duffy is very disappointed with the result and we all should be,” Greenspon said shortly after the ruling was issued Friday.

“If at the end of the day there’s a branch of government that is immune to the rule of law, that’s something that is way bigger than Mike Duffy and he knows it and Canadians should be very concerned about that.”

The Senate voted to suspend Duffy without pay — along with two other senators, Pamela Wallin and Patrick Brazeau — before any charges were laid against him.

Despite his eventual acquittal on all charges by a judge who found all his expenses to be reasonable, the Senate refused to reimburse Duffy for his lost salary or his legal fees and demanded that he repay almost $17,000 in disputed expenses.

Since then, however, Greenspon noted that the composition of the Senate has changed dramatically, with an influx of non-partisan senators unaffiliated with any political party. He and Duffy will consider “in the very near future” whether there’s any point in asking the Senate to reconsider the matter.

While any “step in the direction of doing the right thing” would be welcome, Greenspon said the Senate’s track record thus far is not encouraging.

Philippe Hallee, the Senate’s law clerk and parliamentary counsel, welcomed Friday’s ruling.

“Parliamentary privilege is a vital feature of Canada’s system of parliamentary democracy and ensures that legislative bodies have the level of autonomy required to enable them, and their members, to conduct their legislative and deliberative work with dignity and efficiency,” he said in a statement.

“It is one of the ways in which the fundamental constitutional separation of powers is respected. Today’s decision reaffirms the importance of several elements of parliamentary privilege, including the Senate’s control over the conduct of its proceedings and internal affairs, its disciplinary authority over its members as well as the right to free speech in the context of parliamentary proceedings.”

Sen. Marc Gold, the government’s representative in the Senate, declined to comment on Friday’s ruling.

This report by The Canadian Press was first published Aug. 28, 2020.

Teresa Wright and Joan Bryden, The Canadian Press