There is lots of talk about what Prime Minister Harper may or may not have known about the $90,000 his chief of staff gave Mike Duffy.
Although it is an open secret that the Prime Minister runs a pretty tightly controlled operation, it is always plausible that his chief of staff might have decided to get involved in the affairs of one Senator without telling the boss.
But it doesn't ring true, especially when one considers Duffy's comment about keeping quiet on the "orders of the Prime Minister's Office."
We will likely never get at the bottom of what role the Prime Minister and his office played in this affair.
But we should remember that in appointing two Senators who were, at the time of their appointments, in no common sense way "residents" of the provinces they were supposed to represent, Harper did not just break the law, he defied the Canadian Constitution.
Read the BNA Act -- please!
The British North America (BNA) Act, Canada's founding constitutional document is pellucid and unambiguous about the residency requirement for Senators. We quoted it in this article back in February.
In article 23, the BNA Act states that a Senator "shall be resident in the Province for which he is appointed."
Here is a challenge to readers: please find a case, any case, in recent Canadian history like the Duffy and Wallin cases, where Senators were named to represent provinces many decades after they had ceased living in those provinces. It certainly has not been a normal practise.
Prime Ministers from John A. Macdonald to Paul Martin have named all kinds of people to the Senate. Some were excellent appointments and some not so excellent. Of the hundreds of appointments in recent decades, however, it's clear that hardly any were of people who no longer "resided," in the plain English sense of that word, in the provinces they represented.
All of the sturm and drang around Duffy and Wallin arises out of the fact that they were residents, at the time of their appointments, of the Ottawa suburb Kanata and Toronto, Ontario -- not Cavendish, PEI, and Wadena, Saskatchewan.
And all of that is, at heart, the Prime Minister's responsibility.
This is especially rankling when one considers that the Reform Party which became the Canadian Alliance Party and out of which was born the re-invented Conservative Party were all fundamentally committed to root and branch Senate reform.
Where did Triple-E go?
The Reform/Alliance/Conservative view was that the Senate should cease playing the role of an ersatz House of Lords -- a kind of colonial, two-bit oligarchy -- and should, as are the upper houses of other democratic federations, such as the United States, Germany and Australia -- function as a legitimate institution of the federal system.
In Australia and the U.S., Senators are elected.
In Germany, members of the upper house, the Bundesrat, are delegated by the elected state or "Land" governments.
Among the 25 or so federal democracies -- among which are India, Belgium, Mexico, Switzerland and Nigeria -- Canada is a lonely outlier in having an entirely undemocratic, federally appointed upper house.
The Western Canadian-based movement, of which Harper was a part, and that became the current governing Conservative party, always considered the Senate to be an unacceptable outrage.
The movement advocated the so-called Triple-E option: The Senate should be elected. It should have an equal number of members from each province. And it should be ‘effective’ as a federal institution.
The NDP has, since its founding more than fifty years ago, had a simpler solution: abolish the unelected upper chamber altogether.
If PM had 'no option' but to name Senators, what about his choices?
Harper may be correct in now arguing that since reforming the Senate requires a constitutional amendment and agreement of all the provinces, he has had no choice but to name Senators as vacancies have opened.
And to give him his due, the Prime Minister's appointments, in general, have been a mixed bag, as were those of the Prime Ministers who preceded him.
In his choices, Harper has -- surprisingly, given his party's western populist roots -- tilted a bit toward the oligarchic side, favouring wealthy members of the central Canadian elite, such as David Braley, Nicole Eaton and Linda Frum.
On the other hand, he has made at least a few good appointments, such as the respected economist Diane Bellemare and eminent scientist and educator Kelvin Ogilvie.
But three of his choices were really beyond the pale.
Those were Pamela Wallin, Mike Duffy and Patrick Brazeau.
In the case of the two former broadcasters the fundamental flaw was their failure to comply with the constitutional residency rule.
In Brazeau's case, he was a person of very scant experience, qualifications or support among his own people. His was a choice made for strictly ideological reasons. Were the Prime Minister really interested in getting a Quebec-based First Nations voice into the upper house, he could have chosen an experienced, qualified and respected person such as Cree Grand Chief Matthew Coon-Come.
Of course, Harper would not then have gotten someone who would slavishly follow the Conservative Party line, but that's another story.
Now, all three of Harper's dubious choices are in the Senate until the age of 75, and only a criminal conviction or bankruptcy can get them out.
Whatever he did or did not know about the $90,000 pay-off to Duffy, the Prime Minister is entirely responsible for that ineluctable fact.
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