2nd Session, 41st Parliament,
Volume 149, Issue 7
Monday, October 28, 2013
The Honourable Noël A. Kinsella, Speaker
Motion to Suspend the Honourable Senator Pamela Wallin—Subsidiary Motion—Motion in Amendment—Debate Suspended
Hon. Mobina S. B. Jaffer: Honourable senators, I rise today to speak to Senator Cowan’s motion and Senator Fraser’s motion on sending Senator Carignan’s three motions on suspension to committee.
Before I speak on these motions, I want to thank Senator Furey, who has, for a long time, shepherded us through a very tough period and has worked tirelessly on our behalf.
Some Hon. Senators: Hear, hear.
Senator Jaffer: This is in addition to the hard work also put in by Senators Comeau, Tkachuk and Stewart Olsen. I also want to thank all the members of the Internal Economy Committee for their work on behalf of us. I know you will all agree with me that they have done their best with very few precedents.
Lastly, I would also like to thank the Clerk of the Senate, Gary O’Brien, and Senate administration for their hard work on our behalf. These are probably the most trying times in the Senate, and all of them, including Senators Cowan, Carignan and LeBreton, have done their best on our behalf, and I want to thank them.
Honourable senators, let us examine what we have done here in the Senate. We delegated the examination of Senators Duffy, Brazeau and Wallin’s claims to the Internal Economy Committee. After deliberations, they asked, on our behalf, for the three senators to pay the Senate sums of money and they referred this matter to the RCMP. This, as we all know, is a very serious matter. The RCMP is taking this investigation very seriously.
On our instructions, Internal Economy meted out the penalty for the expenses claimed. Now some of us in this chamber want to mete out further penalties. What worries me very much is that these three senators must have been under the impression that Internal Economy was acting on our behalf, and they cooperated.
Now, in the absence of further violations or trigger events, such as charges laid by the RCMP, some of our colleagues, on their own volition, want to suspend the three senators without pay. To me, that is like a judge who, after sentencing a person with a certain penalty, later decides to impose another, harsher penalty, even though the situation has not changed since he sentenced that person.
In law, one would easily be able to argue that this matter cannot be heard because of res judicata or, in other words, because the matter has already been settled by judgment.
Honourable senators, I am very troubled that we are revisiting this issue on a civil basis when we have already referred this matter to the RCMP for a criminal investigation. How can we justify this?
Honourable senators, Senator Carignan is alleging gross negligence. In Ryan v. Victoria (City) 1999, the Supreme Court of Canada stated:
Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an… prudent person in the same circumstances.
… The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, and the burden or cost which would be incurred to prevent the injury.
Gross negligence, in contrast, is an action or an omission in reckless disregard of the consequences to the safety or property of another.
All weekend I’ve been studying the law books to see how we can call the conduct of the three senators “negligent.” There are other torts that this conduct could be called, but, from my studies, I have difficulty calling it negligence. Nevertheless, for now, I will accept that the use of this term is proper.
Honourable senators, if someone came to my law office stating that they are a defendant in a civil case where it is alleged that they hurt someone as a result of speeding, I would have a lot of questions for them. An allegation of speeding is not enough proof. My questions would be: Who says you were speeding? How do they know that? What is their expertise? What were the road conditions? Were there any other cars? How fast was the person who was hurt driving? I would ask an endless number of questions before I would let an allegation against my client on speeding stand.
Then we would go to court and the judge would decide whether my client was speeding. To arrive at that decision, the parties would testify. They would then be cross-examined, or in other words their statements would be tested. From their demeanour, answers and the circumstantial evidence, the judge rules on the credibility of the person alleging the facts. He would judge whether the facts are proven or not based on a balance of probabilities. Then he would arrive at a decision. That, honourable senators, is due process.
On one hand, we have Senator Carignan making allegations. On the other hand, we have Senators Brazeau, Duffy and Wallin making completely different allegations. Without testing these claims, how are we supposed to arrive at a decision? This, honourable senators, is not the due process that we, as an institution, are supposed to protect.
We are supposed to be a chamber that protects due process, rule of law and the Charter. If we pass these three motions before us, we will be doing irreparable damage to our institution. I shudder to think what will be the reaction of the Minister of Justice or Justice officials when they appear at the Legal and Constitutional Committee and I ask them my question: Is this bill Charter-proof?
How can I ask that question when we are clearly disregarding the Charter with these motions to suspend the three senators? Where would your/my/our credibility be?
Honourable senators, we will be doing irreparable damage to our institution if we vote in favour of these three motions. We will never recover from this error by supporting the three suspensions.
Our institution has taken a great beating. Our reputation has suffered, but I know, because I am a proud senator, each of us is proud of the work we are doing on behalf of Canadians.
When I walk in the East Side of Vancouver to encourage a young girl on the street to seek help and run away from her pimp, and when I succeed in convincing her, I do it as a senator, and I am proud of my work.
When I go to the Red Light District to work with International Justice Mission Canada to rescue trafficked children, I do it as a senator, and I am proud of my work.
When I work with the Human Rights Committee and produce a youth and parent guide on cyberbullying, I do it as a senator, and I am proud of my work, as do all of you, senators, who are proud of your work.
We are proud of what we do, and I believe we now have to work tirelessly to restore our institution’s reputation so that this institution may continue to be proud of its efforts to change the lives of Canadians and others.
Honourable senators, your leader, Senator Carignan, and my leader, Senator Cowan, have both stated that this is a free vote. Over the weekend, Senator Carignan acknowledged that there are other options that this chamber may consider. So in the greatest and most free country in the world, why would we not give time for due process? What are we afraid of? We can stand for what is right with no consequences to ourselves. Today we may vote using our conscience.
The Speaker of the Senate, a very wise and respected individual, last week referenced the Latin phrase, “Nihil ordinatum est quod praecipitatur et properat,” which translates to: “Nothing that rushes headlong and is hurried is well ordered.” We should take his advice. We should take the time to extend due process to Senators Duffy, Brazeau and Wallin.
Honourable senators, I want to share with you something that’s very much ingrained in my memory. As you know, I was born in Uganda. We enjoyed independence in 1962. The feeling of freedom from a colonial regime was exhilarating for all Ugandans. Then that freedom was snatched away from us when the army and President Idi Amin became all powerful.
To this day, I can remember my mother begging my father, who was a member of Parliament, to stop challenging the president. My father risked death by speaking out. My father would respond, “I want my children to learn to stand up for what is right.”
One day, a brave army official warned my dad that Idi Amin’s goons would be arriving shortly at our house. My dad fled. To this day, we shudder to think how my father would have been tortured and killed. One brave soldier took a risk and saved my father’s life.
At a later time, my husband, Nuralla, did not escape from the clutches of the army, and they did take him. The circumstances were horrific, but it is enough to say that I am not a widow today because of one brave police captain who stood up to the army and insisted that my husband be taken to the police station.
Both of these extremely brave men, the army official and the police captain, could have lost their lives, yet they still stood up for what was right. They knew that some principles are worth risking everything for.
In our great and free country that we proudly call Canada, we have been given an opportunity by our leadership to vote as per our conscience. Why would we not stand up for the principles of due process, rule of law and the Charter of Rights and Freedoms? If we do not stand for due process, rule of law and the Charter of Rights and Freedoms, who will? If I do not stand up for due process, rule of law and the Charter of Rights and Freedoms, who will? If this chamber does not stand up for due process, rule of law and the Charter of Rights and Freedoms, who will?
I would like to bring your attention back to Her Majesty’s Writ of Summons which we each received when we first became senators. It states:
KNOW YOU, that as well for the especial trust and confidence We have manifested in you, as for the purpose of obtaining your advice and assistance in all weighty and arduous affairs which may the State and Defence of Canada concern, We have thought fit to summon you to the Senate of Canada.
Honourable senators, I urge you to support Senator Cowan’s and Senator Fraser’s motion and give Senators Duffy, Brazeau and Wallin due process, a value we all cherish.