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Harper defied the BNA Act by naming Duffy and Wallin to the Senate

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PHOTO: flickr/Raj Taneja

Finally, this writer can feel a little less like a voice in the wilderness when it comes to the constitutionality of Prime Minister Harper’s appointments of Mike Duffy and Pamela Wallin to the Senate.

Both lived in Ontario at the time of their appointments, but the Prime Minister named them, nonetheless, to represent Prince Edward Island and Saskatchewan.

It was a brazen act of defiance of the clear language of the British North America (BNA) Act.

The BNA Act says that senators must be "resident in" the provinces they represent. 

When this writer first raised the issue in this space nearly two years ago, he was met with widespread derision from many colleagues

If Senators own $4000 worth of property in "their" provinces, which the BNA Act also specifies, they are constitutionally residents, those colleagues said. 

Senators do not actually have to live in their home provinces, they argued. Some smart folks even suggested there was a "constitutional convention" – whatever that means – to that effect. 

Other commentators have made the equally dubious claim that the "Senate is the master of its own rules" when it comes to qualifications for membership.

That's not, however, what the Senate’s former law clerk Mark Audcent told the Duffy trial.

He said the Senate does not question Governors General, when they, on the advice of Prime Ministers, appoint people to the Senate

The Senate assumes that Prime Ministers have done their due diligence to assure that those they recommend to the Governor General meet all the constitutional requirements, including the residency requirements.

Senate does not decide pre-requisites for membership; BNA Act does 

Now, there are no cases of senators being legally challenged in the basis of their residency.

There is no jurisprudence on the issue.

No one has ever gone to court to challenge the constitutionality of an appointment to the Senate, as Rocco Galati did (successfully) for the appointment of Marc Nadon to a Quebec seat on the Supreme Court of Canada.

To do so now, for Duffy or Pamela Wallin, would almost be cruel. They’ve got enough troubles.

But, in Canada, the Senate is a legislative body.

It does not, in our system, have the role of "constitutional referee." That is the judiciary’s role, and it is a role Canadian courts, especially the Supreme Court, are not loath to play.

Some of us would love to hear what the Supreme Court might have to say on the Senate residency question – but we cannot expect that to happen very soon, if ever.

In the absence of such a ruling, the best we can say about Harper’s choices of Duffy to represent Prince Edward Island and Wallin, Saskatchewan, was that they were highly questionable and risky appointments. 

Harper apparently was of the view that senators fulfill the constitutional residency requirement when they own the necessary $4,000 worth of property, end of story.

However, someone can own property in a province without having ever set foot in that province. That is why the good people who drafted the BNA Act created two distinct requirements for senators.

On the face of it, Duffy and Wallin only met one of those requirements – the $4000 rule – at the time of their appointment. 

Can a historian make unconstitutional appointments Kosher?

The Conservative leadership in the Senate muddied the issue when it commissioned a study by historian Christopher McCreery.

The former Government Leader in the Senate, Marjorie Le Breton, asked McCreery (who worked for her at the time) to find out if the Senate had ever expelled a member for failing to meet the "resident in" requirement.

The answer was: No.

History shows no such expulsions; ergo, once named, Duffy and Wallin were home free.

McCreery is no constitutional expert.

His main field of interest appears to be heraldry and the Canadian honours system. He has written a history of Ottawa’s elite Rideau Club, a history of the RCMP’s long-service medal, a paper on the history of the Order of Canada, and edited a collection of the speeches former Prime Minister R. B. Bennett gave to the British House of Lords in the 1940s.

McCreery’s list of publications includes not a single one on the Canadian Constitution.

And yet, he is the person the Conservatives relied on to tell them that Duffy and Wallin were Kosher appointments, despite their obvious residency problems.

It all, as Duffy’s counsel Donald Bayne might say, defies common sense.

Bayne argues that the Senate is not subject to the laws of common sense. The Canadian Upper House is an Alice-Through-the-Looking-Glass institution, where what seems normal in the "real" world does not apply.

Bayne’s energetic blowing of this sort of legalistic smoke may sow enough reasonable doubt to get Duffy off some, or all, of the charges he faces.

Frankly, though, whether Duffy is legally guilty or innocent is not why so many Canadians are interested in this trial.

Committing fraud for a fairly small amount of money, in the larger scheme of things, is not the crime of the century. If the Prime Minister and his entourage were not deeply involved in the Duffy case few Canadians would have any interest in it. 

Senators have 'federal' responsibilities, ergo the residency rules

The fact is that based on what we know so far the Prime Minister made at least two cynical appointments to one of the two legislative bodies of the federal government, disregarding constitutional rules.

These were not patronage appointments to some obscure government body. 

Senators get to vote on every single bill that becomes law in this country. The Senate examines all legislation. It can, and has, delayed many bills, some permanently.

Senators have a great deal of power and responsibility, and one of their responsibilities is to act as authentic voices for their provincial interests.

As we have written here on a number of occasions, even the undemocratic, oligarchic Canadian Senate is designed, in part, to fulfill that "federal" function. 

Senators are supposed to defend their provinces’ interests over and above partisan considerations. 

That is why the BNA Act requires them to "reside in" those provinces.

Members of the House of Commons are subject to the discipline of regular elections, and, in most cases, the rather strict discipline of their parties.

Senators have a different role, and one way the framers of the constitution sought to assure they fulfilled that role was to require that they – again – "reside in" their provinces.

It is hard to imagine that a Prime Minister who is so widely credited with being frightfully smart was unaware of these "federal" considerations when he named now-notorious non-residents Duffy and Wallin to the Upper House.

He just did not care.

Constitutional requirements – like the niceties of parliamentary democracy – are a mere inconvenience to Stephen Harper.

That is what is truly criminal in this whole sorry case. And that is all most Canadians care about. 

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