What makes a senator ‘resident’ in a province?
Clarifying the rules for the Red Chamber need not trigger a constitutional crisis, writes PETER MCKENNA
It’s fair comment to say that the recent spending scandal engulfing the Canadian Senate is an unacceptable outrage. But the real issue is less about possibly fraudulent spending by senators and more about the meaning of residency.
According to Sec. 23 of the Canadian Constitution (on Senate qualifications), it states that senators “shall be resident in the Province for which he is appointed.” (They should also own “real and personal” property worth $4,000 in the province for which they represent.) In the case of Quebec, where the province is divided into 24 electoral districts or divisions for purposes of Senate appointment, the selected person “shall be resident in that Division.”
As best as I can determine, then, the term resident has never been definitively defined by either the Parliament of Canada or the courts. Now, I’m no lawyer, but I recognize that “shall” is one of those lawyerly words that carry less legal weight than “must.” So, to be generous, there may very well be some wiggle room here.
Since all this residency brouhaha erupted around a group of senators, including Conservative Mike Duffy and Liberal Mac Harb, the Red Chamber has taken tentative steps to clarify what it means by “primary residence.” The Senate committee on internal economy, budgets and administration is now, in an ad hoc fashion, asking all senators to provide a valid driver’s licence, health card, income tax return, and proof of where they vote in municipal, provincial and federal elections. But nothing has been written in legislative stone.
Still, what does it mean to be “resident” in a province for which a senator is appointed to the Red Chamber? It’s worth emphasizing here that there is no specific mention of “primary or secondary residence,” “provincial residence,” or just any plain “residence” (say a cottage in Cavendish, P.E.I.) in the Constitution.
Indeed, the May 2013 Deloitte LLP investigation into P.E.I. Senator Duffy’s primary and secondary residence status concluded the following: “The regulations and guidelines applicable during the period of our examination do not include criteria for determining ‘primary residence.’ As such, we are not able to assess the status of the primary residence declared by Senator Duffy against existing regulations and guidelines.”
This glaring omission in the Constitution and Senate rules seems to suggest that appointments to the Senate — at least when it comes to residency — are based largely on the honour system. Well, almost. Prior to being sworn in, a senator is required to sign a declaration where he/she does “declare and testify that I am by law duly qualified to be a member of the Senate of Canada … .”
This all raises a series of other key questions: Would seeking clarification of residency precipitate a major constitutional crisis in Canada? That is, would it pit the Senate and Canadians against the federal government, which has neglected to include the issue of residency in a series of other Senate-related questions sent to the Supreme Court of Canada in the form of a reference case? Would it have important implications for sitting Quebec senators and for those appointed to represent other provinces or regions?
Furthermore, would approval for any clarifying language require a constitutional amendment (and thus the consent of seven provinces representing 50 per cent of the Canadian population)? Is it also possible that a strict interpretation of residency would trigger the ouster of a sizable number of current sitting senators and thus face stiff resistance in the upper chamber?
Where the Constitution is clear, however, is on the penalty for violating the residency requirement. Section 31 lays out the circumstances that warrant a vacating of a Senate seat — making specific reference to a senator ceasing to be “qualified in respect of Property or of Residence.” Simply put, if you are not deemed to be a resident of the province you purport to represent, then you can’t actually sit in the Senate.
So, how exactly should the residency requirement be clarified? Reasonable people can disagree over the fine details, but most citizens would probably like to see residency verified on the basis of where one spends the lion’s share of their time (183 days?); where they hold a valid health card and driver’s licence; and where they pay resident property and municipal taxes and vote in elections.
Moreover, and as the initial attempt to do so confirms, there’s really no need to open up the Constitution to resolve the residency riddle. All that it would take would be for the Senate standing committee on internal economy to spell out in the appropriate legislation what these specific requirements should be. Or, the senate standing committee on legal and constitutional affairs could craft a set of standing rules regarding residency that could be adopted by the full Senate.
On a final note: This matter is far too important to the credibility and legitimacy of the Red Chamber to be left murky and undefined. Furthermore, any changes to the language around residency — after due diligence — should be made by the senators themselves. And as former prime minister Jean Chrétien used to say: “The better, the sooner.”