Obey the Constitution and don’t appoint crooks

The Senate spending scandal is not quite what it seems.

It is bad enough. And when auditor general Michael Ferguson chastised the upper chamber for its casual approach to expense accounts, he was largely right.

But Canada’s Senate is not exactly the unique cesspool of corruption it is said to be.

And much of its spending problems stem from the unwillingness of successive prime ministers to follow an explicit rule laid down in Canada’s Constitution: that senators reside in the provinces they purport to represent.

The first thing to keep in mind about this spending scandal is that most senators emerged unscathed.

Of the 116 senators and former senators examined, the auditor general questioned the expenses of just 30, including nine that he said should be referred to the RCMP.

It’s worth noting that many of these 30 disagree fundamentally with the auditor general’s interpretation of allowable expenses.

It is possible that these senators are misguided and wilfully blind. But it is also possible that they are right. Former Supreme Court justice Ian Binnie has been asked to arbitrate in such cases. It will be interesting to see what he says.

Second, the Senate isn’t the only political chamber in Ottawa that exhibits curious spending patterns.

As Joan Bryden of The Canadian Press reported this week, more than 60 House of Commons MPs have had their spending questioned over the past five years.

Like the senators pinpointed by the auditor general, these MPs tend to argue they are simply following the rules.

Third, Canadian constitutional practice gives legislators much leeway to arrange their own working conditions.

As a result, MPs and senators tend to give themselves sweet deals. Members of Parliament, for instance, can receive full and generous pensions at the age of 55 after working just six years.

Those who aren’t eligible for pensions receive severance pay if they lose or choose not to run in an election. The Commons and Senate also set their own work schedules. One result is that both bodies take a lot of time off.

In 2014, for example, MPs sat for only 26 weeks. Senators sat for 27. Most Canadians get a day off on Victoria Day. Senators and MPs take a week.

Legislators insist that they spend the rest of their time performing worthy chores in their ridings. And perhaps they do.

But when trying to assess whether senators are gaming the system, it is worth remembering that they are not the only ones who exhibit the profoundly human characteristic of self-interest.

Fourth, residency. Of the nine sitting and former senators referred to the RCMP, five courted trouble for claiming temporary accommodation expenses in Ottawa when, according to the auditor general, they lived there.

Retired senator Rose-Marie Losier-Cool, for example, charged more than $73,000 in housing and travel expenses because she claimed to live in Moncton. But the auditor general found that in 2010-11 she spent only eight days in the New Brunswick city.

Why the discrepancy? The Constitution demands that a senator must be “resident in the province for which he is appointed.”

Prime ministers have tended to ignore this straightforward rule when making Senate appointments, as have senators themselves. As a result, it is not unusual to have a senator allegedly representing some far off province living permanently in Ottawa.

The spending issue arises when senators take this fiction to its logical conclusion and charge expenses for time spent living in Ottawa at their own homes.

This particular problem would go a long way to being solved if prime ministers chose to obey the Constitution when making Senate appointments.

But the Senate itself? Don’t expect it to be abolished. Regardless of what Tom Mulcair’s New Democrats say, abolition — which would require unanimous provincial consent — is a near impossibility.

Don’t expect senators to follow Ferguson’s advice and subordinate their spending authority, in any real way, to an outside watchdog. Legislative bodies don’t give up their prerogatives easily. Nor is it clear that they legally can.

Perhaps the best we can hope for is that future prime ministers don’t appoint too many crooks. It’s not much to ask. Thomas Walkom’s column appears Wednesday, Thursday and Saturday.