Can Patrick Brazeau Be Removed From The Senate?

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Senator Patrick Brazeau leaves a courthouse in Gatineau, Que., after he was formally charged with assault and sexual assault Friday, Feb. 8, 2013. (Adrian Wyld/CP)
Senator Patrick Brazeau leaves a courthouse in Gatineau, Que., after he was formally charged with assault and sexual assault Friday, Feb. 8, 2013. (Adrian Wyld/CP)

Now that Patrick Brazeau has been charged with assault and sexual assault, the question on the lips of many is whether he can be removed from the Senate.

Currently, a senator's job is usually safe until he or she turns 75, but there are some conditions which allow for a senator to be booted from the upper chamber before mandatory retirement.

Because Brazeau is currently Canada's youngest senator he is also projected to be its most costly. If Brazeau retires in 2049 at age 75, his total future salary will be roughly $7 million, according to a projection done by the NDP. That said, if Brazeau is removed from his position, someone else will simply take his place and collect his salary.

The Constitution Act states that a senator may be removed by a decision from the Senate under the following circumstances:

1. If he or she fails to attend two consecutive sessions of the Senate.
2. If he or she swears allegiance to a foreign power.
3. If he or she is judged bankrupt.
4. If he or she is found to have committed treason or is convicted of a "Felony or of any infamous Crime."
5. If he or she ceases to be qualified in respect to his residence, with the exception that a senator can take up residence in the capital while doing his job.

The charges against Brazeau could, possibly, lead to his removal under rule four.

Rule five is also relevant right now. Brazeau, Mike Duffy and Mac Harb are currently the subject of an independent audit into whether they have made false claims regarding their residences in order to collect extra housing allowances.

The Senate also has rules which outline what to do when one of its members is charged with a crime.

A senator is placed on leave of absence as soon as the Senate is notified of a charge for which the senator may be prosecuted by indictment. While Brazeau has been charged with summary, rather than indictable, offences, HuffPost Canada has learned that Brazeau will still be placed on forced leave at the next meeting of the Senate on Tuesday. The Senate can do this in the absence of an indictable charge when it deems there is "sufficient cause."

During the leave of absence, the Senate can suspend the senator's use of Senate resources. The senator is allowed to attend the Senate once per session in order to avoid disqualification under rule one. The senator also continues to collect a paycheque. Brazeau is set to collect a salary of nearly $135,000 in 2013.

The leave of absence will continue until either the charge is withdrawn, the proceedings are stayed or the senator is acquitted, convicted or discharged.

In the event that the senator is convicted, he is suspended from the senate. That suspension will last either until the conviction is overturned, discharged on appeal or the Senate declares the seat vacant.

The terms of the suspension are similar to those of the leave of absence, except the senator no longer gets paid. The senator can, however, still attend once a session to avoid disqualification.

So, even if Brazeau is found guilty it's possible he'll remain a senator. However, under rule four, the Senate could judge the conviction to be an "infamous crime" and remove him. Or, if Brazeau is sentenced to two years or more behind bars, he'll be removed because he will be unable to attend two consecutive sessions.

If Brazeau is found not guilty, or if the case falls apart, the rules say Brazeau will return to work with all the privileges of his position. However, the Senate could decide there is still "sufficient cause" to keep Brazeau on leave or suspension even without a conviction, though it seems unlikely the upper chamber would take this path.

The situation is similar to that previously faced by former Liberal senator Raymond Lavigne, who continued to collect a salary while facing charges of fraud and breach of trust in connection with misusing Senate funds for personal use. He was found guilty.

Lavigne later resigned from the Senate so that he could collect his pension before his colleagues could strip it from him.

Brazeau will not be able to use the same tactic, at least as long as his case doesn't drag on for a long time. A senator must have been in the post for six years and be age 55 or older in order to begin collecting a pension. Brazeau, who has been serving since 2009 and is 38 years old, does not qualify. However, if the case takes several years to resolve, Brazeau might be eligible for a small pension when he turns 55.

With files from Althia Raj. Also, a tip of the hat to CBC's Kady O'Malley and HuffPost blogger Glenford Jameson for their efforts on clearing up the legalese.

Also on The Huffington Post

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