Under the Constitution Act, 1867 (the Act), Pamela Wallin was appointed by the Governor General to fill one of 6 Senate seats from Saskatchewan. Under section 29 of the Act, her appointment is until age 75 unless she is disqualified.

Under section 31 of the Act, she can be disqualified (or removed from the Senate) if she, among other things, (i) is subsequently charged and convicted of a crime in connection with certain expense claims; or (ii) ceases to be a resident of the province for which she is appointed.

Accordingly, I don’t think Ms. Pamela Wallin can be fired/disqualified as a Senator for submitting inappropriate expenses unless she is subsequently charged and convicted of a crime in connection with these expense claims.

The Senate is currently considering a motion to suspend Ms. Pamela Wallin without pay. Under section 36 of the Act, the Senate can decide Senate matters by a majority vote but does an unpaid suspension really amount to a Senate disqualification? If so, it appears the Senate would be exceeding its jurisdiction.

In employment law, an unpaid suspension is generally a termination unless the employment contract permits an unpaid suspension as a form of discipline.  So, arguing by analogy Ms. Wallin could claim that an unpaid suspension violates sections 29 & 31 of the Act which provides she has the right to remain a Senator until age 75 unless a disqualification criteria has occurred. In other words, sections 29 & 31 of the Act trumps section 36 of the Act.

Interestingly section 33 of the Act – which is after the disqualification section of the Act – states that “any Question (that) arises respecting the Qualification of a Senator (including the residency requirement) … shall be heard and determined by the Senate” This section does not explicitly state that the Senate has the power to determine whether a Senator is disqualified. Will a judge imply that such a power exists, or will a judge conclude Parliament would have included the power to disqualify in section 33 if it had intended to do so?

In any event, why is no one in the Senate  looking into the issue of whether Ms. Wallin, Mr. Duffy and perhaps others should be disqualified (or removed) from the Senate because they do not reside in the province from which they were appointed?

Thank you to Chris MacLeod (no relation) of Cambridge LLP for suggesting this blog topic. If you have any questions regarding employment laws, please contact us at 1-800- 640-1728 or at [email protected].