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Duffy verdict does not cure what is wrong with the Senate

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We can now call Mike Duffy Senator Duffy again, without reservation.

Duffy cheerfully accepted an appointment as a senator for Prince Edward Island, despite his own doubts.

The well-known broadcaster knew, in fact, that he lived a few kilometers from Ottawa, far from P.E.I.

However, then Prime Minister Stephen Harper assured his chosen nominee there was no problem.

If you own at least $4,000 worth of property on the Island you're qualified, the PM told the Duffy.

In addition, once he was appointed, the Senate leadership and the Prime Minister's Office (PMO) encouraged Duffy to act, in every sense, as though he was a permanent resident of P.E.I.

Crucially, that meant Duffy should claim expenses for his Ottawa-area home, and for his travel between Ottawa and the Island.

When Duffy's former colleagues at CTV found out he was claiming all these expenses, despite the fact that he had been living happily in the National Capital region for decades, they thought they smelled a rat, and they made it big news.

The PMO and the Senate Conservatives did not like the bad press one little bit, and tried to make it go away. When the whole affair got politically too uncomfortable, they dropped Duffy like a scorched P.E.I potato.

The Conservative hierarchy even arranged to have Duffy (and Senators Pamela Wallin and Patrick Brazeau) suspended from the upper house.

A high-handed procedure

Now, there are some, including this writer, who did not think Brazeau was a sterling representative of Indigenous people, and who found Duffy and Wallin's eagerness to become full-fledged Harper Conservative partisans to be troublesome.

When the former prime minister invited the two media personalities to become senators he did not do so because he valued their independence of mind and character.

Harper wanted Duffy and Wallin to provide star power to his lacklustre parliamentary caucus. And that they did, enthusiastically -- even, one might say, shamelessly.

Until the Conservatives turned against them, Duffy and Wallin were among the most fiercely loyal and über-partisan members of either house of Parliament.

But however one viewed the role the two celebrity senators played in Harper's Conservative universe, it was hard to see the high-handed Senate suspensions as legitimate.

Here is what this writer said about those suspensions, at that time, in November 2013:

"What is clear is that the sanctions imposed on the three Senators were based on no clear Senate rules, and that suspensions of this sort have never before occurred in the entire history of Canada."

Now, in light of the Vaillancourt decision, the Senate Conservatives do not look too good.

But what of the notional legality of Duffy's taxpayer-paid expenses?

Well, while Duffy's and other senators' self-serving interpretation of the Senate's expense rules may not have been illegal -- at least not in the mind of Justice Vaillancourt -- could they be considered ethical?

As one Canadian who follows politics closely wrote to this writer:

"Duffy (et al) may not have had an intent to defraud, but what bugged the public however was not just the 'cheating' but also the sense of entitlement that allowed them, without a guilty conscience, to use their travel allowances, etc, in ways that were most convenient (and beneficial) to them. One hopes that the judge's decision does not lead others to believe that they are entitled to certain kinds of travel. That can only be solved with some very tough and explicit Senate travel rules. The problem is (as the recent audit of the Senate shows) that the cost of administering such rules strictly is higher than what is lost by cheating or pushing on the margins." 

Some ask: Can we really believe Duffy was entirely innocent?

There were many other comments in reaction to the Duffy acquittal.

A number of people agreed with the judge's condemnation of the Harper PMO, but thought Vaillancourt was too easy on Duffy.

Here his how one who commented on Facebook put it:

"The verdict is a farce. Any reasonable person would interpret the existing Senate rules to exclude makeup and personal trainers … An ordinary employee would have been fined, jailed, and forced to pay back the money. Likewise, any reasonable Canadian would know that having your home in a province that you are designated by constitutional design to represent means having your home in that province. Total farce. This ruling was intended to save the PMO: Guilt would have led to guilt by association of the enablers, regarding criminal charges. Disgusting display of judicial bias. Don't expect to see the same court when you are charged."

Some, of course, wanted to defend the Harper government -- although such defenses were, at times, quite comical, as in this case:

"You people at rabble are disgusting. This attempted assassination of Duffy was nothing but a political ploy by eastern establishment to go after Harper. Now that Harper is out of the way, they let Duffy off so as not to taint the other senators [who] do what Duffy did. I hope he sues all your asses for defamation. 'Harper does not look good.' You commies at rabble that supported this travesty don't look good."

The most basic issue, though, is that the judge's exculpation of Duffy, and condemnation of Harper and his acolytes, does nothing about the absurd and undemocratic institution that is Canada's Senate.

To be fair, Justin Trudeau has made things marginally better with his modest effort at Senate reform.

He has tinkered with the appointment process.

On Trudeau's watch, panels of non-partisan citizens will recommend all new senatorial appointments. Plus, all Trudeau-appointed senators will sit as independents, without party affiliation.

One can hope that a Senate thus re-modeled will focus its energies not on fundraising and partisan cheerleading but on improving legislation, representing regional interests, and examining policy challenges not currently on the political agenda.

The Senate did sometimes fulfill those roles in the past, in the pre-Harper era.

Senate remains an affront to fairness and democracy

A great many fundamentally troublesome aspects of the Senate remain unchanged, however.

Senators are still not elected.

They can still serve until retirement at the age of 75. For many, that means they will receive their generous, taxpayer-funded salaries and allowances for decades more, without the inconvenience of ever having to face the electorate.

And, because the constitution requires that senators own property, millions of Canadians are automatically excluded from the upper house.

Very few First Nations people would meet the property qualification. Renters would not be qualified. And few lower income Canadians, whether working or on social assistance, would qualify. Not that anyone should shed a tear over it, but until very recently this writer did not qualify. Many readers are probably in the same situation.

At the same time, if Justice Vaillancourt is correct, a prime minister will still be able to appoint senators whose only connections to the provinces they represent are "of the heart" (as Duffy liked to say of his relationship with P.E.I.) and the fact of owning vacation homes in those provinces.

It is hard to imagine that Canadians do not believe there is still something quite wrong with that picture. 

Note: In my piece on the Duffy trial, on Thurday April 21, I used Senator Keith Davey as an example of a highly partisan senatorial appointee, who was paid a generous Senate salary while he worked on Liberal election campaigns. Davey did, however, also make at least one useful contribution to public discourse while in the Senate. He chaired a special Senate committee on mass media, which, in 1970, produced an influential report called "A Distant Mirror". And so, Davey did not spend 100 per cent of his time on Liberal party business.

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