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.


1 comment:

  1. Can I join you in Harper Free Beartopia? You can be the senator. Honest. :)