page 11
opinions
Editorial: Senate misbehaviour
Mental health
» continued from page 2
» continued from cover
his primary residence. They broke no legal
code, but they broke an unspoken ethical
one. Professor Farrow would surely compare
their behaviour to that of a “zealous legal
advocate”, for whom anything goes, so long
as you don’t contravene the law or the Rules
of Professional Conduct.
The law is no stranger to unwritten rules.
After all, the entire basis of a common law
system is that gaps in statute are not gaps
in law. Unspoken rules for civilization are
embedded in civilization itself, and it is up
to judges to tease them out. In some areas
of law, this principle itself is codified. The
Income Tax Act contains a “General Antiavoidance Rule”. It empowers the court to
admonish a taxpayer thus: “strictly speaking, you didn’t break any rules, but you’re
a weasel and what you did isn’t fair.” The
Senate is about to do the same thing to
three of its members.
If the Senate’s own rules don’t prevent the
suspensions, what else could? There is no
statute, constitutional or otherwise, governing the Senate’s ability to suspend its
members. One of the founding principles of
a bicameral Parliament is that each house is
master of its own affairs. Any statute law
must pass both houses of Parliament, and it
for the Commons to vote on a bill regard-
ing Senate rules would be abhorrent to
that principle of mastery. The Rules of the
Senate have the force of statute there. The
document that creates the Senate, the Constitution Act, 1867, speaks only to eligibility for Senate appointment, and is silent on
what happens once a Senator assumes their
post.
Indeed, it appears that, on the matter of
suspensions, the Senate of Canada truly is
master of its domain. It has unlimited power
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