Confusion over meaning of ‘primary residence’
Definition is unclear, law clerk testifies at Mike Duffy trial
OTTAWA— Suspended Senator Mike Duffy flushed a deep pink when all eyes of an Ottawa court turned to a big flat screen on Day 2 of his fraud trial.
Up on display was Duffy’s hand-signed declaration in June 2009 that his “primary residence” was his Prince Edward Island cottage. Not his suburban Ottawa home.
The complicated question of just where Duffy lived is central to his trial on criminal charges of fraud and breach of trust. Until that moment, Duffy’s gaze trained steadily forward. Now he shifted sideways and stole a glance across the room as reporters craned to read the fine print.
One of his first such declarations, it said Duffy’s cottage at10 Friendly Lane in Cavendish “is more than100 kilometres from Parliament Hill and that I therefore incur additional living expenses while I am in the National Capital Region to carry out my parliamentary functions.”
The Crown’s theory is that the declaration was false, the beginning of a deliberate plan by Duffy — who didn’t incur additional expenses but commuted downtown from his longtime Ottawa home — to use senate funds as his own personal “reserve pool.”
And according to exhibits filed in court, Duffy was quick to take advantage of Senate payments.
He claimed a per diem of $81.55 on Dec. 23, 2008 — the first day after he was named a senator — and again on Dec. 28. He filed for a partial per diem on Dec. 29, the same date he made his first trip as senator to Charlottetown before his P.E.I. appointment was yet formalized. On that visit, Duffy and wife Heather got P.E.I. driver’s licences. At the end of January 2009, his first month on the job, Duffy billed the Senate for 31nights of private accommodation, totaling $775, for using his long-time Ottawa residence.
Mark Audcent, retired Senate law clerk, testified for the Crown that residence is a question of “fact.” He suggested it could be determined by a “whole package” of facts, like where you have a home, where your family lives, where you vote, where you pay your taxes, where you get government services like a driver’s licence, or health coverage. But he agreed under cross-examination by Duffy’s lawyer, Donald Bayne, that the Senate never set out clear definitions of “primary” or “secondary” residence, never defined residence for the purpose of determining eligibility to hold a seat in the upper chamber, nor for seeking payment of expense claims.
Bayne suggested repeatedly Duffy had no other choice — Senate rules, policies and guidelines all but required him to declare the P.E.I. cottage as his “primary” resi-
dence or risk losing his seat — because the Constitution required all senators to be resident in the province they represent.
Audcent agreed there is a “danger” of a senator losing his seat if he fails to hold property or be resident of the province he represents. He also agreed the $100,000 worth of renovations Duffy poured into his P.E.I. cottage showed a “commitment” to that residence. But Audcent also said no senator has to file the declaration “because they don’t have to collect this particular benefit.” In other words, they were not compelled to bill the Senate.
To bolster his argument that Duffy made his declarations in “good faith,” Bayne highlighted a memo from office of the Conservative government leader in the Senate, Marjory Lebreton, to “rookie” senators Duffy and Pamela Wallin (also now facing police investigation over her travel claims.)
Written by Lebreton’s policy adviser Christopher McCreery, it suggested they needn’t worry about “disqualification.”
“I checked all of the authorities on the senate and residency is not defined,” McCreery wrote. “My interpretation is . . . 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 per cent of the time.”