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Speech in Senate Chamber: Inquiry—Audit of Senate Accounts by Auditor General—Debate Adjourned

Audit of Senate Accounts by Auditor General

Inquiry—Debate Adjourned

Hon. Anne C. Cools rose pursuant to notice of May 14, 2015:

That she will call the attention of the Senate to:

(a) the Auditor General of Canada, the statutory officer, that parliament did not, and never intended to give a power to audit it's houses, the Senate and the House of Commons; and, to the predecessor auditor general who, until 1878, was united and merged in the office of the deputy minister of finance; and, to this parliament's An Act to provide for the better Auditing of the Public Accounts, which statute was adopted here in 1878, to completely divide these two offices and functions, and to absolutely separate the auditor general from the finance department and the government, so as to extract him from all government business forever, all of which were for the purpose of constituting the Auditor General of Canada as an wholly independent officer, freed from, and free of, the control, influence, and politics, of the government of the day; and

(b) to the sad and unfortunate fact, which the government does not seem to note, that the unique independence granted to this officer, the Auditor General of Canada as the auditor of the public accounts, wholly forbids his obedience to the government's wishes in any way, particularly its motions which, when adopted, become house orders, that subject him to the contempt powers of the houses; and, to the auditor general's audit of the Senate, the upper house, which is a hurtful and menacing compromise of this officer's independence, caused by the fact that this overly-publicized Senate audit was not born of senators, but was born of the Senate Government Leader's government business, at the instance of that government leader's government measure, moved here by that government minister, and hastily adopted last June, with little debate, in a government whipped vote; and, to the fact that senators learned of the government's intention, and the auditor general's agreement to audit senators from that day's media reports; and, to the terrible fact that senators were the last to hear of this unilateral development.

She said: Honourable senators, for two years now, all current and some former senators were compelled by a government motion to subject themselves to the Auditor General's audit examination. Weighted and wounded, many thought, perhaps wrongly, that their government had enlisted the Auditor General's help to close the Senate. During 2013, the timing of events here branded the "Senate scandal," pointed to the awful conclusion that Canada's government was working to discredit the Senate. That fall, on October 16, by the Throne Speech, our Government had Governor General David Johnston, read eerie words, that:

The Government continues to believe the status quo in the Senate of Canada is unacceptable. The Senate must be reformed or, as with its provincial counterparts, vanish.

These dubious words are not fit for the Governor General, nor for the Senate, the royal, federal and only house wherein Parliament may assemble in its three distinct parts — the Senate, the Commons and His Excellency.

Honourable senators, that spring saw many focused media leaks on the financial lives of four named senators. That was pay dirt for Senate haters. That summer, these "Senate scandal" events reached high noon drama. On June 5, Government Leader Senator Marjory LeBreton suddenly moved a punitive government motion to bring the Auditor General to audit all senators and apparently some former senators. The next day, with scant debate, her government motion was quickly adopted.

Colleagues, audits are rarely emergencies, but she did not explain her haste or her government's audit offensive against senators. Scarcely debated, this government motion was bad parliamentary practice, and worse parliamentary manners, because the Auditor General Act grants him no power whatsoever to audit/examine, or to compel senators to audit examination. Auditors general, not servants of the government, have no duty to serve a government motion compelling senators to audit examination. He should have refused the invitation.

Honourable senators, that fall, these Senate scandal events grew from high noon drama to midnight madness in the government's barbaric suspension motions, adopted here that November 5, to throw three hard-working senators out of this place. As government motions, these suspension motions took priority over all Senate proceedings. I note that only Crown ministers may claim this priority, but there are no Crown ministers here in the Senate. These government motions proceeded here despite the rex, the royal prerogative law that suspension and removal of those holding commissions and letters patent is the sole ken of the Governor General who granted the office and who must act on the Senate and the Commons' advice, given in an "address," the parliamentary form of proceeding.

The 1947 Governor General's Letters Patent, clause V states:

And We do further authorize and empower Our said Governor General, so far as We lawfully may, upon sufficient cause to him appearing, to remove from his office, or to suspend from the exercise of the same, any person exercising any office within Canada, under or by virtue of any Commission or Warrant granted, or which may be granted, by Us in Our name or under Our authority.

By the Letters Patent, only the Governor General can suspend or remove from office.

Honourable senators, these lethal suspension motions proceeded here by closure and time allocation. Such motions may only be moved by Crown ministers, only after prolonged obstruction of government measures that are urgently needed for the public good. These suspensions will end by the Prime Minister's call — the timing of these suspensions is timed to the Prime Minister's call — when he chooses to end this session. These sacrilegious suspensions destabilized this place, the senators, and the suspended senators' lives and, I would add, their physical and mental well-being.

Honourable senators, Canadians watched these events with great distress in the lead up to the November 12 Supreme Court hearings in the Reference re Senate Reform, file number 35203, by the Supreme Court Act, section 53. By this reference, the government asked the court for its opinion on certain legal questions. In three parts, question 5 on Senate abolition reads:

5. Can an amendment to the Constitution of Canada to abolish the Senate be accomplished by the general amending procedure set out in section 38 of the Constitution Act, 1982, by one of the following methods:

(a) by inserting a separate provision stating that the Senate is to be abolished as of a certain date, as an amendment to the Constitution Act, 1867 or as a separate provision that is outside of the Constitution Acts, 1867 to 1982 but that is still part of the Constitution of Canada;

(b) by amending or repealing some or all of the references to the Senate in the Constitution of Canada; or

(c) by abolishing the powers of the Senate and eliminating the representation of provinces pursuant to paragraphs 42(1)(b) and (c) of the Constitution Act, 1982?

On April 25 last year, the Supreme Court answered these three abolition questions in the negative: No, no and no. The public discourse then was replete with the phrases "Senate abolition" and "Senate illegitimacy." On October 25, 2013, days before the court hearing, Government Leader Senator LeBreton was clear on Senate illegitimacy. On CBC Radio's "The Current," she said:

I do believe that all of us, especially senators, must realize that the Senate, as an institution, at the moment, is not seen in the eyes of the public as a legitimate democratic organization . . .

Colleagues, that is not so. I do not have to realize that at all. I do not have to realize such contrived nonsense.

This government must realize that its first duty is to uphold our Constitution with its two Parliament houses. No government has any duty whatsoever to grow public scorn against this Senate. I recall December 14, 2006, when, during our sitting, Government Leader Senator LeBreton and Prime Minister Harper held a press conference outside our door. The PM and CTV's David Aiken's transcript, reads:

Aiken: Good evening Prime Minister. Yesterday it was pretty clear from your remarks that you were disappointed with an unelected, unaccountable Senate, and you presented some . . .

Rt. Hon. Stephen Harper: I'm always disappointed with that. You know, as a Western Canadian, I wake up every day and the Senate bothers me. I curse the Senate.

This made senators very sad. There was much commotion out there. Some of us went out to see this press conference. There were lights. This is what was happening. I witnessed it, I heard it, I saw it and I have the transcript.

Honourable senators, the Senate scandal events were dark and disturbing. Their predatory and savage inhumanity, their timing and sequence made many attribute to some a malevolence to destroy the Senate. Senators, to their credit — and it's a great credit and I admire my colleagues for this — faithfully did their work and did their best in terrible work conditions and ugly publicity, crowned by a government motion forcing them into an audit of dubious and doubtful legality.

Senators should be upheld for their commitment to public service. I have never seen anything like that in my life, how all of these senators in the Senate persevered in these times.

As I said, senators should be upheld and celebrated for their commitment to public service. This government-compelled Senate audit has been a large drain on senators' time and energy, and of their staffs'. Its effect on senators and on the public mind has been pernicious. It diminished and infantilized senators. It subjugated them to a false power, not granted by the Auditor General Act or the Constitution Act, 1867. Such subjection subverts the lex parliamenti, the law of Parliament, and the principles, practices, and customs of Parliament's houses. This subjugation was wholly unlawful and unparliamentary. The two houses are no part of the Auditor General's duties, which are quite specific in the Auditor General Act: He or she is the auditor of the public accounts. Senate accounts are no part of the public accounts.

Colleagues will recall, I had opposed then-Government Leader LeBreton's government motion. I spoke and voted against it on June 6, 2013. I said then that the Auditor General Act grants him no power to audit examine senators, even at the behest of a government minister's motion, a motion that should be seen for what it was: a parliamentary heresy, making the Auditor General an outlaw to his own act, which neither intends nor grants him any power to audit either of the two houses.

Honourable senators, I note this officer's website posting Frequently Asked Questions about the audit of the Senate. To the question, "When did your Office start the audit of the Senate?", it answers:

The audit started in Fall 2013, after the Senate gave us the mandate to undertake it. On 11 June 2013, the Auditor General had informed the Standing Senate Committee on Internal Economy, Budgets and Administration of the Office's decision to accept the Senate's invitation . . . .

Honourable senators, this government business invitation motion was quickly passed here in a government whipped vote. "Invite" is a cozy word. Some will take false comfort that by this cozy "invite," the auditor somehow — by magic — can acquire a power to audit senators and this place. But no Senate motion by itself can alter the Auditor General Act to create a power to audit the Senate, even at the government's behest. Most senators found this quickie debate on this government motion obnoxious and repugnant. But knowing the real dangers to themselves, they held their tongues and voted. All who serve in these houses well know that government's hand is swift and ready to smite those in its way. Ask me. I can tell you. In my 32 years here, I can tell you all about that.

Described by the Auditor General as his "mandate" and by the government as "invite," this government measure to audit and examine senators was a coercive disciplinary act. This was the government's public display of power and force, to yield fear and submission from senators. The government set out to show the public its righteous indignation and moral outrage against the illegitimate Senate and the illegitimate senators.

Honourable senators, the Senate and House of Commons, as independent houses, have the full judicial and curial powers of the ancient lex et consuetudo parliamenti, to run their own affairs, free from government coercion. Both our houses' leaders must be Crown ministers. Ministerial responsibility here, as in the Commons, is administered properly by rival political parties. The supporters of the majority government's Conservative party properly hold all the Senate leadership positions and control all, if not most, of the committees, mainly our Standing Committee on Internal Economy, Budgets and Administration, which manages the Senate and senators' expenses, including our internal audit systems. These all failed. We should know why certain senators were mercilessly persecuted and punished for these system failures. If our systems failed, why did three senators pay such a bitter price for that failure?

Honourable senators, responsible government in ministerial responsibility holds that Crown ministers are responsible for all successes and failures on their watch. Our Senate administration is managed and controlled by the government. If there are failures and wanting systems, the responsible minister, the Leader of the Government in the Senate should answer and tell us about them, and answer to us for their failures.

Instead, the Government Leader, by a government measure of government business, with priority in Senate proceedings, quickly dispatched the Auditor General to audit examine every single senator. This caused great discomfort for senators but guaranteed much more adverse publicity in the weeks leading directly to the Supreme Court hearings.

Colleagues, this Senate audit, this woeful display of unbridled power, was an extravagant and shameful show of force over senators. This audit was a constitutional vandalism on the Senate. It also violates the Auditor General's independence that protects him from subjection to government orders and government business. He should not do government business. He was separated completely and absolutely from government business in 1878.

The government's motion violated our Senate Administrative Rules, in particular, rule 5-2, which prevents the Auditor General's exposure to a government motion. Headed "Auditor General of Canada," our rule 5-2 states:

The Internal Economy Committee may invite the Auditor General of Canada or an independent auditor to conduct audits of the Senate Administration and its accounts, under such terms and conditions as the Committee establishes.

The Hon. the Acting Speaker: Would you like a few more minutes, senator?

Senator Cools: Yes, please.

Hon. Senators: Agreed.

Senator Cools: Thank you.

Honourable senators, the intent of this rule is to bar any government from enlisting the Auditor General's support against senators. This was decided by the Senate some years back, when this rule was put into force. Further, it protects the officer's independence from compulsion by any government measure, and perhaps from his own ambition, to help a government, by audit of senators. Senate government leaders are not the Senate's fathers or mothers superior who prescribe penance to senators for their sins.

The June 6 government motion for the Auditor General was harsh. It wholly compromised the Auditor General's independence, which sad fact has eluded most observers and seems to have eluded the incumbent himself. This government measure was so flagrant as to be corrupting. The Government Leader and the auditor share a misapprehension of this auditor's role and relationship to government and to the two houses. Government motions, as government business, have priority in the Senate. They may be moved only by a government minister to move government public business through the Senate. Auditors general do not do have any government business and they do not do government business, so why was the Auditor General summoned here by a government motion?

Honourable senators, the large question is: How can the Auditor General's audit of senators be government business? Our Auditor General was created by an 1878 act, expressly to separate completely and sever absolutely the Auditor General's audits from government and government business. He was to be independent of government, subject to removal not by government, but by address of the two houses to the Governor General. This act enacted that he report only to the House of Commons, precisely because his business is not government business.

We should know the nature of the government business that the government has in the Auditor General's audit of senators' expenses. Somebody should tell us. We should know the nature of the government's business and interest in the Auditor General's audit of senators, which audit was at the instance of a minister's government motion, which itself is odd, and an intrusion on his independence and his audit powers.

As I said before, this is a constitutional horror.

Honourable senators, by section 5 of the current Auditor General Act, his duty is to audit the Public Accounts of Canada; that is the government departments' expenditures, not those of senators nor House of Commons members. This act defines the sole and limited relationship between the Senate and the Auditor General. Judicial and curial, it is limited solely to his appointment and removal.

This act's subsections 3(1) and 3(1.1) grant the Senate a superintending role to protect him from government's heavy hand, which by invitation he now holds. Subsection 3(1) is the Senate's power to approve or reject the candidate before appointment. Subsection 3(1.1) is the Senate's role to remove the officer for misbehavior, known as forfeiture and styled removal. An address is the communication between the houses and the Queen as the head of Parliament, or, in her stead, the Governor General.

Honourable senators, I worry that the Auditor General may misunderstand and misapprehend his role. Last year, Jordan Press' March 13 Ottawa Citizen article, headed "Auditor posts FAQs on Senate spending" said:

The federal auditor general plans to refer any cases he finds of questionable spending by senators to the RCMP even before his current comprehensive audit of Senate spending is made public. . . .

It quotes the Auditor's staff that:

If, after completing our audit work, we have a reason to believe that a criminal offence may have been committed, the matter will be referred," said spokesman Ghislain Desjardins. "It would be inappropriate to speculate on any specific cases."

Honourable senators, I close by noting that haughty words from a staff's lips aggravate, inflame and hurt. Auditors general have no legal power to judge senators, nor to refer their affairs to the police, or to anyone, for that matter, and certainly not to make them public. Such judgments are the Senate's alone to be made in a process decided by the Senate and senators. This auditor, good man that he is, has no legal power to audit, examine, or compel senators in audit or in anything. Senator LeBreton's government motion, though adopted here, did not and could not grant him a power which the Auditor General Act does not, nor can her motion defeat or work around the Auditor General Act to create that power. The Auditor General, good man that he is, is not the government's agent of social or political control. I thank senators for their attention.

The Hon. the Acting Speaker: I am sorry to interrupt, but I must advise that the honourable senator's time has expired.

(On motion of Senator Moore, debate adjourned.)

The remainder of this day's Senate Debates are available here.