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How To Ensure the Senate Scandal Mess Doesn't Happen Again

11/01/2013 04:12 EDT | Updated 01/23/2014 06:58 EST

Claims, counterclaims, spin, counterspin -- what's a person interested in truth and justice in the Senate scandal supposed to do? Here's how to ensure all the evidence comes out about the Senate scandals, and all wrongdoers are held accountable, and this kind of mess can't happen again.

The first problem is that the various senator's cases are currently in the hands of the RCMP, and also the Commissioner of Canada Elections (concerning Senator Duffy and Senator Wallin's election campaign activities for the Conservatives).

The RCMP's independence is questionable given RCMP Commissioner Bob Paulson's widely criticizednew policy revealed in April 2013 that aligns his office with the office of the Minister of Public Safety in all communications about the RCMP's actions. Many commentators have raised concerns about how this new policy negatively affects the ability of the RCMP to make independent law enforcement decisions, especially about the actions of government officials.

The office of the Commissioner of Canada Elections has been very secretive about investigation decisions in the past, and has refused to disclose details about thousands of complaints it has received since 1997. In addition, the Commissioner has made some very questionable decisions about prosecutions of serious violations recently.

The second problem is that the RCMP and Commissioner of Canada Elections may be overseen by federal prosecutors who serve under a assistant deputy minister and deputy minister appointed and controlled by the Conservative Cabinet.

While the identity of the prosecutor(s) overseeing the RCMP investigations is not known, under the Elections Act, the Commissioner of Canada Elections reports to the Director of Public Prosecutions (DPP) Brian J. Saunders. While the DPP has a fixed, non-renewable term of office, he was selected from a list the federal Attorney General developed and submitted to a committee made up of 7 people, 4 of them chosen by the Conservatives. The Attorney General, now Peter MacKay, may also take control of any prosecution file from the DPP at any time for any reason.

As a result, even the DPP is not independent enough from the Conservative Cabinet to ensure integrity in election law investigations, and prosecution decisions.

To ensure all leads are followed, all evidence is considered, and everyone who has violated the law is prosecuted, both commissioners must issue public statements committing that they will follow the evidence in their investigations no matter where it leads (including if it leads to charges against anyone in the PMO, even the Prime Minister), and must confirm that they are reporting to prosecutors who have no ties, or a reporting or direct or indirect control relationship, with anyone appointed by the federal Cabinet, or anyone in any political party.

Overall, the best way to ensure integrity in this situation is to have Prime Minister Harper and the opposition party leaders agree on an independent prosecutor to oversee everything. In similar situations, many provincial governments including in B.C. and Ontario have appointed independent prosecutors. However, the fact that the Premier or provincial Attorney General selected the special prosecutor led to questions about the independence of the prosecutor. That's why the approval of the opposition party leaders is needed to have a fully independent, non-partisan prosecutor.

The prosecutor should be required to give public updates on the status of all the investigations every month (of course, without disclosing any details that would undermine the investigations), and required to explain publicly if s/he decides not to prosecute someone who is facing allegations (as independent prosecutors have in B.C. in similar politically charged situations).

The third problem with how the Senate scandal is being handled is that the current proposal to suspend the three senators without pay violates the Parliament of Canada Act which makes paying MPs and senators mandatory (s. 55) and only allows pay to be cut after an MP misses the House or Senate more than 21 days in a session (sections 57 and 59).

As well, having the House or Senate hand out penalties is a dangerously unfair process that is wide open to abuse because, like all legislatures, the House and Senate are kangaroo courts undermined by partisan and other political and personal conflicts of interest. No one concerned about having a rule of law (ie. a key basis for democracy) in Canada should endorse the current House or Senate discipline processes in which politicians investigate and judge other politicians.

To have a democratic rule of law in this area, the House and Senate rules, and the rules in every legislature across Canada, should be changed to define exactly what suspensions (of various time periods) are mandatory for alleged and confirmed violations of criminal, ethics, spending and other integrity laws, codes and rules. The suspensions should range from 6 months with pay up to losing one's seat without pay, benefits or pension.

As well, a fair compromise concerning pay for suspended senators and other politicians would be to establish a rule that if a politician is found guilty of the alleged violation, they would be required to return any pay received after the allegation was first made.

These changes to the Parliament of Canada Act, which could be made in a couple of weeks, would make standards of conduct and penalties clear to all, and remove the possibility of any legislature arbitrarily suspending, penalizing or kicking out some members but not others even if their violations are similar.

Finally, the honesty, ethics, transparency and spending and election campaigning rules for Cabinet ministers, their staff, Cabinet appointees, MPs and senators and their staff, are all rife with loopholes that must be closed, and enforcement and penalties need to be strengthened in every area as well.

Until all these changes are made, everyone should expect evidence about wrongdoing by powerful people will continue to be overlooked, less powerful people will continue to be charged as scapegoats, and many people will be let off the hook because of technical loopholes and weak enforcement agencies, and those actually found guilty will face incredibly weak penalties.

Canadians deserve better -- but the question is whether there is a political party leader in Canada committed to delivering honest, ethical, open, representative and waste-preventing government.

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