Wednesday, 6 November 2013

Star Chamber politics are alive and well in Ottawa. Prime Minister Stephen Harper ensures more legal wrangles.

The Star Chamber at Westminster in an annotated print dated 1835.

The Senate of Canada now has a new use. Prime Minister Stephen Harper brings back Star Chamber proceedings. Senators Duffy, Wallin and Brazeau are suspended without pay and left in limbo for the duration of this parliamentary session.

by Tom Thorne

Although the history of the origins of the Star Chamber in British parliamentary and legal history can be traced before the Tudor monarchy starting with Henry VII in 1485, it came into its own after that time until it was only abolished in 1640 when Parliament passed the Habeas Corpus Act.

The concept behind the Star Chamber is that anyone brought before this group of Privy Councillors and Common Law judges knew that they were already considered  to be guilty and an enemy of the King and state. It had powers to take the high and mighty of the realm and parade them when they were deemed morally reprehensible but in no  clear violation of the law. That could include suspected treason when no proof could be found. In short you were always guilty and any attempt or at a defence was useless. Truth didn’t matter in Star Chamber proceedings.

The Star Chamber was arbitrary and used against opponents of the King. The actions this week of Senate of Canada has charged, tried, and suspended three Senators for unproven charges or with no clear knowledge of the facts of the three cases. In that sense it is the same as the Star Chamber where  prisoners could mount a written defence (in the case of the Senate that is in Hansard) and they were subject no matter what they said to arbitrary decisions. That is how The Court of The Star Chamber operated.

The three senators are on the hot seat because they have run afoul of Prime Minister Stephen Harper’s agenda to please the mysterious “base” of the Conservative Party. The Senate of Canada has been transformed into a Star Chamber where the Conservative majority in that place can easily find them guilty of “morally reprehensible acts” and suspend them. This is also close to Star Chamber powers. That court could imprison, pillory, take away offices but only maim those it found guilty. They did not have the power to put anyone to death. This “Star Chamber” can only ruin reputations.

Now we don’t live in the 17th Century and we do still observe the rule of law in Canada as Pamela Wallin stated as she left Senate Chamber after the vote to suspend her. The Charter of Rights and Freedoms has been in the case of the three senators clearly been breached. This can only give rise to a legal challenge to overturn their suspensions. In the limbo created by the Senate’s actions yesterday they are still senators in name only with health and insurance benefits. Their suspension can only last until the next election call in 2015 but their terms as senators remain in effect until they are 75.

This means that their senate seats cannot be filled with new senators which also means that the provinces they represent are without Senate representation. That may be unconstitutional because senators are appointed by the Governor General on the advice of the Prime Minister. Can the Senate suspend senators without the Governor General’s approval? 

Their work this week to take the vote for suspension may be challenged as a breach of the Constitution of Canada. Can a senator be held for almost two years without pay be legal especially when they have a partial coverage of health and insurance which makes them in receipt of a consideration and therefore creates an ongoing common law contract with all three. In short, suspension may be moot if they are still on the books receiving any consideration. Does their suspension mean they cannot work for the Senate in any way?

A test would be for all three to turn up for Senate business. If they are denied entry to the Senate Chamber or to committee meetings they could argue that such arbitrary punishment goes against their rights under the Charter of Rights and Freedoms to a fair and impartial trial. There has been no due process. It is all innuendo and it certainly is slander if it affects their ability to make a living during the suspension.

They should cite the removal of the Star Chamber in 1640 as precedent in British and Canadian Parliamentary practice to remove arbitrary state sanctioned show trials and the institution of innocent until proved guilty as a first principle for all citizens. Senators cannot be subject to different laws than any other Canadian. 

I see a lot of legal wrangling arising from this vote. This suspension does not clear the Prime Minister or his office from their involvement in Duffy’s Nigel Wright episode. The fact that the RCMP continues to examine these cases and the work of the Prime Minister’s Office (PMO) in this sad affair, ensures that we have not heard the end of this story. 

If the RCMP for any reason can not lay any charges against any of the suspended senators does that mean they are immediately reinstated? Also there may be a Constitutional law challenge mounted by the three senators and the Provinces they represent  now that they are denied Senate representation.

What this all says about the current Harper Government style and way of doing things is also now front and centre. Clearly the controlling management model of Prime Minister Stephen Harper and his PMO is not working. Clearly Nigel Wright is  on the verge of going public or into the courts if his reputation is sullied anymore by the Prime Minister.

After the Calgary Conservative Policy Convention it may now be time to examine the record of Stephen Harper at the helm of this country in a new critical light. He cannot distance himself from this situation because he chose all three of these senators and those who work at senior levels in the PMO. He chose the people working in the PMO and he chose to play hard ball with the Duffy, Wallin and Brazeau Senate suspensions that may create a further deeper and more profound legal challenges.

Finally, Senators and members of The House of Commons must all be asking themselves what it means to come into conflict with the Harper agenda and his PMO. Prime Minister Stephen Harper has offended many conservatives who have a high opinion of for former PMO chief Nigel Wright. They may keep their political knives sharp if  the Prime Minister is ever found to be more deeply involved in this scandal than we know at this time.

© Copyright 2013, Tom Thorne, All Rights Reserved

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