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Senate Scandal: Sanctioning those who have not respected the rules?

Kelly Starrak (2L)

In November 2012, the Senate’s internal economy committee began to audit the housing allowances of its members. Findings indicated that certain expenses were being improperly claimed. Under particular scrutiny was PEI Senator Mike Duffy’s claim for $33,000 in living allowances for a ‘secondary’ residence in Ottawa that appeared, on the facts, to be a primary residence ineligible for such allowances. Though owner of PEI property since 1998, Duffy had resided in the Ottawa area since arriving as a journalist in the 1970’s, had purchased the claimed residence in 2003- five years prior to his upper house appointment- and had long been an active, registered voter in the Ottawa area. His place of primary residence was, for all intents and purposes, Ottawa.

On November 5, 2013, after a year of further investigation and discovery regarding the misuse of public funds, the Senate voted to suspend Duffy and two fellow Senators- Pamela Wallin and Patrick Brazeau- for “behavior which clearly abused the rules of the Senate.” Harper, alert to the opportunity to bolster his party’s appeal, declared: “For those who are concerned about the Senate scandal, I only need to point out that it was this party, the Conservative Party, who required for the first time transparency on Senate expenses. And [it is] only this party, the Conservative Party, that has sanctioned those who have not respected the rules.”

Interestingly, Section 23 of the Constitution stipulates that a Senator “shall be resident in the Province for which he is appointed.” Couldn’t it be argued that the Conservative Party, via Harper himself, equally disrespected the Senate rules by appointing Ottawa-residing Mike Duffy into the PEI Senator position?

I guess that depends on the definition of “resident.” Those of us in Spyrzak’s tax class would be hard-pressed to find a voting, long-term resident of Ottawa to be a primary resident of PEI. However, when an internal memo to Duffy reviewed this issue shortly after his 2009 appointment, author Christopher McCreery defined “resident” so liberally as to, I would argue, offend a reasonable interpretation of the word.

He noted that the Senate, as “master of its own house”, had “never disqualified someone for not being a ‘resident’ of their province of appointment”: “there has been a longtime convention that so long as a Senator owns property in his or her province of appointment, then they are allowed to sit as a Senator from that province, even if they live in Ottawa 99% of the time.”

This raises an issue very relevant to our legal studies: Does a pattern of failing to meaningfully adhere to a Constitutional requirement justify the behavior? Constitutional lawyer and University of Ottawa Dean Sebastion Grammon believes otherwise: “non-compliance over a period of time does not make the requirement disappear.”

So, when considering whether certain parties should be applauded for sanctioning Senators “who have not respected the rules”, it may be pertinent for members of the public and legal community to ask ourselves, “What rules do we actually expect to be meaningfully upheld?”