Thursday, February 28, 2013

Harper wades in on the Senate’s Residency question… Did he get it wrong?

I read on the Global Toronto New site that Stephen Harper has put to rest the allegations that some Senators may not be eligible to sit in the Senate…

Questions have been raised as to whether they spend sufficient time in their home provinces or territory to meet the constitutional residency requirement.

"All senators conform to the residency requirements," Harper told the House of Commons.

"That is the basis on which they are appointed to the Senate and those requirements have been clear for 150 years."

The story goes on to say

A government official said Harper interprets the residency requirement to mean that senators must "own residences and maintain deep ties" to their home province.

There is just one problem.  He’s got it wrong.

There is nothing in the Constitution about “deep ties” and the part about “own residences” is only part of the story.  To refresh your memory I’ll provide you with a snippet from the British North America Act of 1867 (BNA).

23   The Qualifications of a Senator shall he as follows:

(5)He shall be resident in the Province for which he is appointed:

(6)In the Case of Quebec he shall have his Real Property Qualification in the Electoral Division for which he is appointed, or shall be resident in that Division.

I’ve included both section 5 and 6 for a reason.  In Quebec, 65 of the Senators are named from Electoral Divisions.  In Quebec, the Senator must wither be resident in that Electoral Division or can hold property in that Division.  This shows that simply owning property in a Jurisdiction does not automatically make you resident in that Jurisdiction.

Section 5 would also cover Senators from Quebec the same as any other Province.  Note the wording “shall be resident in”, doesn’t that strike you as an odd way of wording the Qualification?

These parts of the BNA still stand as written all those years ago.

I was puzzled by the words “be resident in”.  It is a simple Qualification rule.  You must live in the Province you represent, so why the strange wording.

This phrase, while unusual in Canada is still used in the UK today.  Citizens of the Commonwealth are permitted to vote in the elections there if they are resident in the UK.  They have lived there long enough to be considered  resident.  Under their tax laws, if you are a citizen of the UK but do not spend enough time there (183 days in a year) you are not considered resident in the UK and the way you are taxed may change.

The issue is not about “residency” per se, but are the Senators “resident in” their given Provinces.  That is the $64 question.  If you live in Ontario, have and Ontario Driver’s Licence and OHIP card, if you pay your taxes to Ontario, can you sit as a Senator from some other Province?  From what I’ve read, there are a few Senators “from” some Provinces who appear to actually be “resident in” other Provinces.

This is what the Senate needs to clear up.

I was born in Ontario and have lived in Ontario my whole life.  If I were to move to another Province, set up housekeeping there and get my Health Card and Driver’s Licence there, would I still be eligible to sit as a Senator from Ontario?  Stephen Harper says yes, as long as I hold property in Ontario and “maintain ties” with Ontario which could mean I visit my family for Christmas I guess or that I stay in touch and occasionally visit friends there.

But my actions state otherwise.  By taking out a Health Card and Driver’s Licence I signal my intention to reside in my new Province, to be resident in that new Province.  If I don’t intend on becoming a resident in that new Province, there are steps I can take with the Province of Ontario to remain an Ontarian.

Alas, I’m wrong.

CBC news is reporting that Mike Duffy is eligible to sit in the Senate.  The legal advice that the Senate sought has come through and by merely signing a document you can be the Senator for “your” Province.

Please, go read the story, and while you are there, read the Declaration that the “Senator” will have to sign.  I’ve read it twice.

If you can find where in the Declaration it says that the Senator “is resident in” or any other words that state residency please point it out to me.

It ain’t there kids.

The fix is in… maybe I should move to Beartopia, it’s nice there this time of year, and there is no Harper Party there either.


Tuesday, February 26, 2013

Of Senators and Constitutional Questions.

All the recent news regarding the Senate and the Senators was basically making me numb to the issue.  Seriously, it seems to be a part of a plan to make us all idiots.  After something happens, such as the Duffy Affair we get inundated with glop from the media and from the Parties to the point where it just doesn’t seem to matter anymore.

And then Peter Van Loan opened his mouth.

What Peter had to say was quoted in the National Post:

“Senator Patterson, Wallin and Duffy all own property in the provinces and territory they represent,” Peter Van Loan, the government’s House leader, told the Commons on Monday.

“They maintain deep, continuing ties to those regions. In fact, all three senators spend considerable time in their home provinces and territory.”

Well, that ground my gears.  Again we are seeing the Harper Party and their Law and Order™ agenda that applies to everyone except for the Harper Party itself.

When it comes to the Senate and more specifically the rules governing who can sit in it, the Constitution is quite specific.

 The Qualifications of a Senator shall be as follows:
1)    He shall be of the full age of Thirty Years;

2)    He shall be either a natural-born Subject of the Queen, or a Subject of the Queen naturalized by an Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of One of the Provinces of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, before the Union, or of the Parliament of Canada after the Union;

3)    He shall be legally or equitably seised as of Freehold for his own Use and Benefit of Lands or Tenements held in Free and Common Socage, or seised or possessed for his own Use and Benefit of Lands or Tenements held in Franc-alleu or in Roture, within the Province for which he is appointed, of the Value of Four thousand Dollars, over and above all Rents, Dues, Debts, Charges, Mortgages, and Incumbrances due or payable out of or charged on or affecting the same;   

4)    His Real and Personal Property shall be together worth Four thousand Dollars over and above his Debts and Liabilities;

5)    He shall be resident in the Province for which he is appointed;

6)    In the Case of Quebec he shall have his Real Property Qualification in the Electoral Division for which he is appointed, or shall be resident in that Division. (13) 

Pretty straight forward aren’t they?

Well except for maybe #3 which is written in lawyer speak…

But the one I’m looking at is number 5. 

Pretty simple rule.  You shall be resident in the Province you are to represent.

I stressed the word shall for a very important reason.  In certain circles, words such as “can” or “may” or “should” are referred to as “weasel words” basically meaning that you can weasel your way around them.  “May” can also mean “may not”, it is not definite.  “Shall” on the other hand is a directive, there is no way to weasel around “shall”.

What Van Loan is saying is an affront to Canadians who believe in the rule of law, and the Constitution is the highest law in the land. 

In Stephen Harper’s efforts to twist the Senate into his distorted view of what it should be, he is opening up a Pandora’s Box that could put us into a “Constitutional Crisis”.  It’s not me saying this, those are retired Senator Lowell Murray’s words.

Part of the reason that this could cause such a crisis is found in Section 31 of the Constitution, part 5

 The Place of a Senator shall become vacant in any of the following Cases:

5)    If he ceases to be qualified in respect of Property or of Residence...

          Canada Justice Laws website

If any other Senators are found to have voted in Ontario, or carry an OHIP Card rather than their home Province’s Health Card, or fail to meet another of the criteria that the Senate Committee looking into the residency of Senators is using, they could be unceremoniously put out into the street.

What happens then?  Do we trust Stephen Harper to restock (or restack if you like) the Senate?  Does the Governor General use his power to select enough people to fill the Senate?  Maybe we should let the Privy Council do the selecting.

Or we could just leave the seats vacant and save a few bucks.

I honestly don’t know if the current Senate kerfuffle was created intentionally by the Harper People, I certainly hope not.  One thing I do know is that these Senators have been doing pretty good on the public dime, and if they weren’t eligible to sit in the Senate from Day One, someone needs to be reimbursing us.  If they were in the Senate and knew they shouldn’t be, then they should be paying… but if they were put in by someone who knew they shouldn’t be there, maybe He should be writing the cheque… 

A closing thought.  CBC contacted 104 Senators and asked them the same 5 questions that the Senate Committee has been asking asking.  Of the 96 that responded, 17 refused to provide information… 15 of those were Harper’s appointees...

Kinda makes you think, doesn’t it?

If you’d like to see the article, click here: CBC News
I’ve maintained for some time now that any member serving in the House of Commons or the Senate for that matter should be required to take an Oath and part of that Oath would be to protect the Constitution, similar to what our friends to the South have. 

Maybe we could at least have them read it?

Cheers, BC

Sunday, February 10, 2013

Where's Waldo Senate Style

If you've been following the news lately, you're probably aware of the current kerfuffle over the residency of our current crop of Senators.

What appears to have started as a targeted shot at one or two Senators is beginning to snowball into something much larger. Where do our Senators live when they aren't in the Senate?

Okay,  from what I gather this all started with someone wondering why some Senators were claiming living expenses for being in Ottawa even though they actually own homes in the area. One of these Senators is Mac Harb who sits as a Liberal in the Senate.

Senator Harb has owned a home in the Ottawa area going back to the 1970s, but he still claims Senate living expenses because his “home" is in Pembroke, Ontario. Pembroke is outside of the 100km limit to claim these living expenses.

If Senator Harb lived there before he got his appointment then he would be within the rules. Is this an abuse of the rules?  I'd say so, but my say so doesn't carry a lot of weight in these matters. This is just another one of those rules that the people in charge like to make to subsidize their own kind.

So another Senator, David Tkachuk (Conservative) has been given the job of determining the real residences of all the Senators.

Senator Tkachuk seems to be a reasonable man. He lives in Ottawa during the week and travels home on the weekends. We might be annoyed that he flies back and forth to Saskatchewan, but that's allowed, it is part of the rules... And at least we know where his residence is.

Now I don't know if Sen. Tkachuk had an agenda to target one or two Senators or if he wanted to make sure all the Senators were on the up and up, but he told the Senators that he needed proof of residency from all of them. He wanted copies of their Health Cards and Driver's Licenses, the same things you or I would show to prove where we live. Oh and proof of where they vote.

After Sen. Tkachuk made his request, odd things started to happen. A certain fellow from PEI suddenly needed his Health Card renewed and some people wondered why if a Senator lived in their town, they had never seen them. And then the News People woke up.

Our News Folks might be late to parties, but when they smell blood they dive right in.

Curiously Sen. Harb seems to have fallen off of the radar being replaced by much higher profile Senators...

Senator Duffy (Conservative) who suddenly needed his Health Card renewed found out that he can't renew it, he's been away so long he needs to apply for a new one. He doesn't qualify for the tax break for having a residence in PEI, and he apparently voted in the Ontario provincial election.

Senator Brazeau (Conservative) appears to own a home in the Ottawa area, but claims he lives with his Dad. Senator Brazeau also seems to have claimed residency on a Native Reserve at another time for tax breaks but no one there can recall him living there.

And now Senator Pamela Wallin (Conservative) is facing questions over her Saskatchewan residency. Although she owns property there, she has spent most of the last decade between New York City and Toronto.

Senator Tkachuk seems to have opened a can of worms and is now looking for outside help. What is a simple question to us may be more complicated issue in the Senate. Senator Tkachuk realizes that his way of maintaining a home may not work for others. It might be easier for some to live in Ottawa and visit "home" from time to time.

But the Constitution requires a Senator to reside in their home province and work in Ottawa.

So what does residency mean?

For most people this is easy. We live in our residences, we call it home. We go to work and sleep at home.  Some who live far from their jobs may spend the work week close to their job and travel home on weekends, much like Sen. Tkachuk does. Students may live at school or nearby, but come home for Christmas.

Actually students are a special group. When it comes to elections, students get to choose where they vote. They are allowed to vote either at home or where they live. But does that define residency?

That's the issue that Sen. Tkachuk is wrestling with.

The provinces also have rules governing residency.  Depending on where you live, the amount of time you need to spend there to be a resident varies. Most provinces will only allow you to be out of province for six months in a year.  Beyond that and your Health Card lapses. 

So what is a reasonable requirement?

The Senate is usually sits between 60 and 100 days in a year, but that doesn't take other Senate business into account. Senators have other duties besides sitting in the Senate Chambers, they also sit on Senate Committees as well as House of Commons Committees. Just as most MPs have duties outside of the House and Committee work Senators have other business to attend to as well.

To maintain our health insurance, we need to reside in our provinces for a certain number of days each year. The number of days varies by province,   122 (NL), 153 (ON), or 183 in the rest of Canada. Would it be reasonable to hold Senators to the same standard that applies to the rest of us?

The majority of us live with the 183 day rule, maybe they should too... Fair's fair isn't it?

Well maybe, but the Senate Schedule is a bit odd.  They usually run 20 to 24 weeks a year, but they run in blocks of 3 or 4 weeks with a week or two off in between and July and August set aside as summer vacation.

It is a bit of a mess, but I’m sure they will figure something out.  They always do… but I don’t know if anyone would accept Senator Duffy’s 60 days in PEI a year an acceptable standard.

I’m no longer a betting man, but I’d wager that if they do anything that it won’t adversely affect any sitting Senators...  If they set a number of days, it will likely be 122 or less…

Maybe they’ll surprise me. I’ll offer this idea to Senator Tkachuk for free… it shall be required that any person being considered for a seat in the Senate to provide proof of residency of 183 or more days per calendar year for the 3 years prior to being installed in the Senate.

It would have solved most of these problems before they happened, but actually knowing what you were doing would have solved most of these issues before they happened.  Like being aware that there is a residency requirement in the Constitution for Senators.  But when the guy making the picks says things like “I’m the Boss, I make the rules” I guess all bets are off.

Yes Steve, I’m looking at you.

Laters, BC