OTTAWA — A Supreme Court ruling means Sen. Mike Duffy can't sue Parliament's upper chamber for suspending him over expense claims, but he plans to push ahead with legal action against the RCMP for its role in the affair.
The top court said Thursday it will not hear Duffy's challenge of an Ontario Court of Appeal ruling that prevents him from pursuing a lawsuit against the Senate.
Duffy had been seeking $7.8 million in damages from the Senate, RCMP and federal government.
Duffy's lawyer, Lawrence Greenspon, said while the Prince Edward Island politician is disappointed by the top court's decision, the lawsuit is not over.
"This decision removes one of the defendants, but it doesn’t remove the others, including the RCMP against whom Sen. Duffy will continue his civil action," Greenspon said.
Duffy filed the suit following a high-profile investigation of his expense claims, which culminated in the senator's acquittal on 31 criminal charges in 2016.
He alleges the federal attorney general is liable for the RCMP's negligent investigation and decision to lay the charges against him.
In late 2018, an Ontario court ruled the Senate's decision to suspend Duffy was protected by parliamentary privilege, a ruling upheld on appeal, effectively blocking his bid to sue the upper chamber.
In their submission to the Supreme Court, Duffy's lawyers said he was the victim of arbitrary abuse of power by public officials, which is anathema to the rule of law.
Lawyers for the Senate argued parliamentary privilege plays a vital role in maintaining the separation of powers between the legislative, executive and judicial branches considered crucial to Canadian democracy.
As usual, the Supreme Court gave no reasons Thursday for refusing to grant Duffy leave to appeal.
Duffy was named to the Senate on the advice of then-prime minister Stephen Harper in 2008, but he left the Conservative caucus in May 2013 and now sits with the Independent Senators Group.
He was suspended in late 2013 without pay, a move that Greenspon argues was politically motivated.
Greenspon says Harper's office threatened Duffy that he would be kicked out of the Senate unless he admitted to inadvertently abusing his expense account and repaid $90,172 in housing expenses.
The Senate maintains it was exercising legitimate authority to discipline one of its own.
Following Duffy's acquittal, the Senate refused to reimburse his lost salary or cover his legal fees and demanded that he repay almost $17,000 in disputed expenses.
Duffy's submission to the top court said three key questions remain unanswered:
— To what extent do the fundamental Canadian constitutional principles of the rule of law limit the scope of the Senate's immunity in a case such as this?
— Does the Senate have statutory authority to remove a senator's salary, housing and per diem allowances for days residing away from his home province?
— Does the unelected Senate have exclusive jurisdiction to adjudicate charter claims against it?
"No privilege exists or is of sufficient scope to oust the jurisdiction of the courts or to immunize the Senate’s misconduct in this case," Duffy's lawyers argued.
The Senate, on the other hand, said these questions are settled, given that privilege shields parliamentary decisions about the use of resources by, and discipline of, members.
Duffy's argument amounts to an assertion that matters otherwise clearly protected by parliamentary privilege will lose that protection, and invite judicial review, if the actions are alleged to be sufficiently wrongful, the Senate submission said.
"This argument has been repeatedly considered and uniformly rejected by this Court and across other Commonwealth jurisdictions."
This report by The Canadian Press was first published Feb. 11, 2021.
Jim Bronskill, The Canadian Press