PM erred in appointment

At the centre of the Mike Duffy trial is a problem Stephen Harper desperately wants to avoid: The prime minister should never have chosen him.

The reason is simple. By any reasonable interpretation, Duffy did not meet the primary constitutional qualification for a Canadian senator — that he be “resident in the province for which he is appointed.”

In fact, as the prime minister must have known (almost everyone else did), Duffy had been living in the Ottawa areas for decades.

He was born in Prince Edward Island. But he had not lived there for a very long time.

And yet, in defiance of the Constitution, Harper appointed Duffy to represent P.E.I. in the Senate.

Almost all of Duffy’s legal problems stem from the efforts he and others made to try to square this impossible circle. Crown prosecutor Mark Holmes made the point almost in passing Tuesday when he noted that Duffy was “probably ineligible” to sit as a P.E.I. senator.

The trial returned to the question Wednesday when former Senate clerk Mark Audcent was asked who was responsible for determining whether a senator met the constitutional requirement for residency. His answer: The prime minister. “If the prime minister wants to recommend an appointment (to the governor general) he has to recommend a qualified person,” the former clerk said.

The question of residency goes to the heart of the Duffy trial.

The biggest single chunk of money he is alleged to have obtained fraudulently is the $82,000 he claimed in travel expenses for living at his home in the Ottawa suburb of Kanata.

To many, the idea of charging travel expenses for living in your own home might seem weird.

But the argument from Duffy’s lawyer, if I understand reports of the trial correctly, is that the accused was merely following the rules of the Senate.

To admit that his Ottawa-area home was his residence would have been to admit that he did not, in fact, live in P.E.I.

And if he didn’t live in P.E.I., then he couldn’t be a P.E.I. senator. Therefore, under the strange but compelling logic that rules in the upper chamber, Duffy had little choice but to claim a housing allowance for living in the Ottawa area — in order to demonstrate that he didn’t live there.

Does that make sense? Probably not to most people. Certainly not to the prosecution. But as the defence revealed Tuesday, this logic did make sense to Harper’s former right-hand man.

Nigel Wright told RCMP investigators that he advised Harper that Duffy “may have been legally entitled” to the money he collected for living in his own home.

We already know from material revealed before the trial began that the issue of where Duffy legally and constitutionally lived dominated much of the political discussion around Harper.

Duffy’s questionable housing expenses became an embarrassing public issue for the Conservatives in late 2012. By early 2013, according to Wright’s emails, the Prime Minister’s Office was working on plans for Duffy to repay his expenses. But the senator was digging in his heels: He wanted to make sure that nothing he did jeopardized his claim to be a resident of P.E.I.

As the emails show, those around Harper fretted that the questions aimed at Duffy might spread to other Conservative senators who didn’t necessarily live where they claimed to reside.

“I am greatly worried that Sen. Duffy could be considered a resident of Ontario,” Wright wrote in one missive. “The consequences are obvious.”

At one point the Prime Minister’s Office prepared a note chiding the Senate leadership for trying to tighten residency rules before determining how this might affect Conservatives in the upper chamber.

The 41-day trial has just begun. Some of the most intriguing questions — such as how Duffy can be charged with receiving a bribe when no one is charged with offering one — have yet to be addressed.

But from the first two days of testimony one thing stands out. Harper could have saved himself, and Duffy, a lot of trouble if he had just followed the law.

There surely must be at least one Conservative living in P.E.I. with the wherewithal to represent that province in the Senate. The prime minister didn’t have to choose an Ontarian.