Errol Mendes is a professor of constitutional and international law at the University of Ottawa, and president of the International Commission of Jurists, Canada.
Many members of the Senate seem determined to expel Senator Don Meredith after the Senate ethics adviser determined that he had breached the Senate's ethics code. The breach was serious enough to get his colleagues to ask the Senate's law clerk for advice on how to expel him under the Canadian Constitution.
There is no criminal charge against Mr. Meredith. The breach concerned a sexual relationship between the 52-year-old married man and a teenager who was 16 when the relationship started. Police determined not to charge him with the criminal offence of sexual exploitation of a young person, so there is no conviction of any serious crime that would allow the Senate to expel Mr. Meredith under Section 31 of the 1867 Constitution Act.
Some constitutional experts have argued that a senator can only be expelled under Section 31 due to absence from more than two consecutive sessions of the Senate, allegiance to a foreign power, if bankrupt or insolvent, or if convicted of treason, a felony or any "infamous crime", or does not meet property qualifications. However, these may not be the extent of limitations on when Senate seat must be declared vacant. It could be regarded as the expressly mandated situations under the Canadian Constitution where the Senate must regard a senator's seat becoming vacant when the actions come within the provisions of Section 31.
The Senate seems to have a much greater plenary power to expel based on Section 18 of the Constitution Act, 1867, which gives to both the House of Commons and the Senate the same privileges, immunities and powers, as they are defined by Canadian legislation as those exercised by the British House of Commons.
The reason why this could give the Senate a larger power to expel a member by a majority vote is because the British House of Commons has used the same privileges and powers to remove an elected MP with a simple majority vote on a motion. This power has been used only three times since 1945. In two cases, it has been used to remove two MPs who had been convicted of the serious crimes of forgery in one case, and fraud and conversion of property in the other, each carrying a seven-year prison sentence. However, a third MP was expelled for a non-criminal offence, which could offer the Senate an interesting precedent to study.
On Oct. 30, 1947, Garry Allighan, a Labour MP, was expelled for lying to a committee and gross contempt of the House. According to the BBC, he was expelled following the publication of an article in the media accusing members of "insobriety and of taking fees or bribes for the supply of information". He was not convicted of any crime. This expulsion for what looks like a grave form of ethics breach could well be used as a precedent for the Senate to consider if the majority decide that they do have a more plenary power to expel a senator and are not limited to the provisions in Section 31 of the Constitution Act 1867.
It will be up to a majority of senators to decide whether the actions of Mr. Meredith were so serious as to come within the same type of gravity as those committed by Mr. Allighan. It should be noted that the Senate ethics officer Lyse Ricard's report found that Mr. Meredith violated two sections of the code of ethics, namely that he did not uphold the highest standards of dignity inherent to his position, and that his actions reflect adversely on the institution of the Senate.
If Mr. Meredith is expelled based on the as-yet-unused-to-date power inherent in the wording of Section 18, based on the British precedent, it should send a dire warning to the rest of the Senate that standards of ethical behaviour expected of them on pain of potential expulsion may well be far more rigorous than what was accepted before. For example, lying to a Senate committee or ethics officer on expenses or "gross contempt" of the Senate, whatever that may encompass, could then be ground for expulsion. After the debacle on Senate expenses in the past, Canadians would probably give thumbs up for this new frontier of accountability for senators.
Eds Note: An earlier version of this column mistakenly referenced Section 30 of the 1867 Constitution Act.