It is time the independence and security of a Senate appointment must walk hand in hand with accountability.
There have been calls for the resignation of Sen. Don Meredith by his peers, journalists and the public. (Cathie Coward / The Hamilton Spectator).
Does the Senate have a “right to fire?”
Callers to Rita Celli’s CBC radio show Ontario Today on Wednesday were perplexed with recent revelations regarding the damning and detailed report from the Senate ethics officer concerning the actions of Sen. Don Meredith.
Charges have not been laid by the Ottawa police after their own investigation, but Meredith’s admission, apology and appeal for forgiveness, regarding a sexual relationship with a teenager, would on the face of it, seem to violate the 2014 Senate Code. It establishes a broad obligation for Senators to “uphold the highest standards of dignity” and “to refrain from acting in a way that could reflect adversely on the position of Senator or on the institution of the Senate.”
Calls for Meredith’s resignation have come from both his peers and from journalists.
Individuals phoning into the show pointed out that people in regular jobs would have been fired immediately. After all, dismissals for all sorts of reasons seem to be the new norm in today’s workplace of churn and precarious job security.
Even the beloved puppet figure of Elmo on Sesame Street had an employment trauma this past week. In a clever video parody, What’s Trending filmed Elmo as he was being fired after 32 years with PBS because of the proposed Trump budget cuts. In a heart breaking moment, Elmo leans his head to one side, and asks softly what he will do now. That little move speaks volumes about the uncertainty of losing your job.
More familiar is the Donald Trump gesture when he points his gun-like finger at some poor contestant on his show The Apprentice, while gleefully saying “you’re fired.” That more aggressive move showcases the competitive nature of the marketplace.
However, none of this applies if you are 1 of 105 senators.
They are not fired, nor are they subject to layoffs. In fact, their salaries were raised in 2016 to $145,400. Market place competition doesn’t apply because they operate as co-equals. They are accountable to only themselves, not to the people. They cannot be voted out. Appointed until age 75, senators have tremendous job security by virtue of tradition, unwritten conventions and constitutional law.
But do they have the power to fire one of their own?
The answer depends on your view of the concept of parliamentary privilege.
Parliamentary proceduralists would argue that privilege is unfettered by the written vacancy rules contained in s.31 of the Constitution Act, 1867. This section lists the reasons for the declaration of a Senate vacancy (i.e. fails to attend two consecutive sessions of Parliament, death, retirement, bankruptcy, treason, infamous crimes). Other lawyers, however, maintain that s.31 codifies the reasons for a declaration of vacancy and are therefore exhaustive.
The bottom line is that no senator has ever been explicitly dismissed by their peers. They have, however, been suspended, with or without pay, and have had privileges docked. Senators who have been convicted of various crimes have chosen to resign instead.
Michel Cogger, Eric Bernston and Raymond Lavigne all resigned following conviction for influence peddling or misuse of public funds (although Cogger’s charges were later discharged by the Quebec Court of Appeal). It could be argued that Andy Thompson, after failing to report for many sittings, was constructively dismissed as his privileges were removed along with his right to sit. He, too, eventually resigned.
At this moment, Senator Meredith is on sick leave. He has hired a new lawyer, who has thankfully, decided to “dial down” original charges of racism again the Senate. The Senate ethics committee is quite properly considering its recommendations and will eventually make those findings to the Senate as a whole. Under s.33, the Senate is free to interpret the written rules, as noted in Prof. Adam Dodek’s book, The Canadian Constitution. Perhaps, this is the time to seize that opportunity.
Individual senators perform amazing and worthwhile work but their brand has taken too many hits over the years. They must find the will to push the reset button now and they must do it with firmness, fairness, clarity and transparency. It is a tall order because they are wading into unchartered legal and political waters. But it is time.
It is time that the independence and security of a Senate appointment must walk hand in hand with accountability. It is time for senators to face head on the questions of employment law and modern workplace challenges. It is time for senators to acknowledge, that although they can wear a cloak of immunity, it is wiser to remove that cloak and walk among the rest of us.
If not now, when?