The Harper government may face a court challenge over its bid to preclude disgraced senators Mike Duffy, Pamela Wallin and Patrick Brazeau from the parliamentary pension plan while they are under suspension from the upper house.
Wallin's lawyer, Terrence O'Sullivan, said Friday the move amounts to retroactively changing the penalty for the three senators after they've been sentenced — precisely the reason given by the Supreme Court last week for striking down the government's attempt to retroactively tighten parole eligibility for those already behind bars.
"My client is now in the position of not only being unable to work but of being unable to accrue pensionable service even though she is still a senator," O'Sullivan said in an interview.
"In our view, this is wrong and contrary to law."
Wallin has not yet decided whether to challenge the government's latest move to restrict her pension eligibility, but "we have not ruled out any option," O'Sullivan said.
As part of an omnibus budget implementation bill introduced Friday, the government is proposing amendments to the Members of Parliament Retiring Allowances Act.
The amendments would ensure the three senators don't accrue pensionable service while under suspension for making allegedly fraudulent expense claims.
The trio was suspended without pay last November for the duration of the parliamentary sitting, which is expected to continue until 2015 — the same year all three would ordinarily become eligible to collect a generous parliamentary pension.
After the upper house voted to suspend the three, the government was embarrassed to discover that their time in political purgatory would legally count towards the six years of service needed to qualify for a pension.
Treasury Board President Tony Clement vowed to change the law if necessary to prevent that, which he has now done through the budget bill.
The change will not affect the pensionable service accrued by the trio since November but it will apply to them going forward once the amendments are enacted.
Clement has said government legal advisers have assured him that proceeding in that fashion is legal and not the same as making the changes retroactive to the moment the senators were suspended.
However, O'Sullivan said the move amounts to increasing the penalty retroactively.
"In our opinion, this legislation does apply a different penalty to the senators in question retroactively, which is completely contrary to the reasoning of the Supreme Court of Canada in the recent (parole eligibility) case," he said.
What's more, he said it casts doubt on the validity of the Senate vote to suspend the trio, since senators did not know at that time that they'd be stripping the three of their pensionable service, as well as their pay.
"(It) represents now a fundamentally different regime from the one that was in place when the hearing was held in the Senate and the vote was taken," he said.
"If this regime had been in place, who knows how the vote would have gone or whether the length of the suspension would have been the same?"