Published Apr. 13, 2015, in the Waterloo Region Record.
Senate residency rules become a public issue approximately once in a blue moon.
It happened back in 1979 when Joe Clark became prime minister with a minority Progressive Conservative government. Clark wanted to appoint his friend and trusted adviser Lowell Murray to the Senate. Problem was, Murray, although he had lived in Ottawa for years, was still technically a resident of Nova Scotia where he had a home in Cape Breton – and there were no Senate vacancies in Nova Scotia.
But there were in Ontario. So Clark approached Bill Davis, the Tory premier of Ontario, to ask if he could “borrow” an empty Ontario seat for Murray, who Davis also admired. No problem, Davis said. In short order, Murray acquired a condo in Ottawa, thereby satisfying the Confederation-era requirement that senators own $4,000 worth of “real property” in the province they represent. (Real estate prices may have risen in 148 years but the old quantum hasn’t.)
Anyway, Murray became known as the “Senator from Condominium”; he served with distinction in Upper House for 32 years before retiring at 75; while there, he held three cabinet portfolios in Brian Mulroney’s government.
That blue moon is shining on Ottawa again as the Mike Duffy trial unfolds. As we learned in week one, residency for Senate purposes is, to borrow Winston Churchill’s definition of Russia, “a riddle, wrapped in a mystery, inside an enigma.” A native of Prince Edward Island, Duffy owns “real property” there, a cottage worth a good deal more than $4,000. You might think that would qualify him to be a senator from PEI.
But wait! Senate rules provide that members may claim travel and living expenses in Ottawa if their “primary residence” is more than 100 kilometres from the national capital. So Duffy declared the PEI property to be his primary residence and claimed living expenses for the Ottawa home where he has lived for 30-odd years. He could have claimed Ottawa as his primary residence, but if he had done that, he might have disqualified himself from his PEI Senate seat because the rules also require that senators be residents of the province they represent.
When the Senate asked the Deloitte auditing firm to review the residency riddle, the auditors threw up their hands in confusion: “There is a lack of clarity in the terminology used for the different residences mentioned or discussed in the applicable regulations and guidelines. The following terms are used without being clearly defined: primary residence, secondary residence, NCR (national capital region) residence, provincial residence. In addition, the term registered residence is not defined.”
Mark Audcent, who was the law clerk of the Senate when Duffy was named, told the trial he was not aware of any definition of primary or secondary residence. He said there was no rule about the length of time a senator spent at his primary residence and no rule against seasonal structures being designated as primary residences. Audcent testified, in effect, that a senator’s residence was wherever he claimed it to be and wherever the prime minister agreed it was when he appointed the senator.
When Stephen Harper appointed Mike Duffy in late 2008, both men knew Duffy had lived in Ottawa for years and was only a summer resident of PEI. They didn’t think it mattered. Harper chose to make Duffy a senator from Prince Edward Island. (On the same day, he made Pamela Wallin a senator for Saskatchewan, where she had roots, although she actually lived in Toronto.)
Mark Holmes, the crown attorney prosecuting Duffy, told the court that Duffy was probably ineligible to sit (and to claim expenses) as a senator from PEI from the moment Harper named him. “He was constitutionally eligible to have been appointed from the province of Ontario, but that is not what happened,” Holmes said.
In other words, the prime minister screwed up. He should have followed the Joe Clark/Lowell Murray precedent and made Duffy a senator from Ontario.