Duffy Lawyer Uses Dictionary in Dissecting Senate Residence Rules (Duffy-Trial)

April 8, 2015 Updated: April 9, 2015

OTTAWA—In a trial expected to delve deep into the often murky rules of the Senate, an ordinary dictionary played a key role Wednesday during suspended senator Mike Duffy’s second day in court.

The definition both sides were in search of: what it means for a place to be someone’s primary residence.

It’s a key element in Duffy’s case. The 31 charges he faces include allegations that he fraudulently claimed living expenses for a home in an Ottawa suburb, where he spent most of his time, while declaring a summer house in P.E.I. as his primary residence.

Retired Senate law clerk Mark Audcent was the Crown’s first witness in the case, telling the court that as part of his job, he briefed every new senator as part of an orientation process designed to provide an overview of the requirements of the job.

To be appointed a senator, court heard, a person must meet certain criteria, including being a resident of the province from which they were appointed.

Prime Minister Stephen Harper announced on Dec. 22, 2008 that Duffy, a popular television personality, would become a senator for Prince Edward Island.

Audcent told the court that in Duffy’s orientation session—which took place the next day—he wouldn’t have gone specifically over what it means to be a resident, saving such detailed discussions for if or when a senator asked for more information.

But by his own estimation, Audcent said, determining residency requires considering a set of indicators, among them where a person primarily lives, where they pay their taxes and get government services such as a health care and where they socialize, doing things like going to church or bowling.

“Every indicator is just part of a package, residence is a question of fact,” he said. “You gather these indicators together and you look at the whole picture. There is no indicator that is absolute.”

Audcent said, however, that it wasn’t the job of Senate administrators to police whether someone met the requirements to be a senator—that would have been taken care of prior to the person being appointed.

But the meaning of residence has never been defined, either in the Constitution or by the Senate, Audcent acknowledged during cross-examination by Duffy’s lawyer Donald Bayne.

Bayne put pages of the concise Oxford English Dictionary in front of Audcent, having him read the definition of primary as “of chief importance or principal.”

So, since the constitutionality of Duffy’s appointment hinged on him being a resident of P.E.I., it must de facto be his “primary” residence, Bayne said.

“The minute his status changed form being a private journalist broadcaster to being a parliamentary, an appointed senator, the chiefly important residence for his status was P.E.I.,” said Bayne.

“The one he needs to maintain, yes,” answered Audcent, who had earlier told the court that in terms of determining residence there was no minimum number of days required to be spent in a home province.

Audcent was shown a memo which the policy adviser for then-government leader in the Senate Marjory LeBreton had sent Duffy and Pamela Wallin, who was appointed the same day as Duffy.

The memo dealt with the section of the Constitution that talks about the need for a senator to be resident in the province represented.

Wallin also faced a residency problem. She was based in Toronto, but was appointed as a senator for Saskatchewan, where she had a family home.

The memo noted that the Senate is master of its own house when it comes to deciding what residency means and that no one had ever been disqualified from sitting in the Senate over a residency question, provided they continued to own property in the province they represented.

Essentially, the memo said, if a senator told the upper chamber he or she was a resident of a particular province, everyone accepted it.

Duffy faces charges for submitting claims under a Senate rule established in 1998 which says senators whose primary residence is more that 100 kilometres from Ottawa ought to be reimbursed for living expenses incurred while in capital.

There’s always been a balance, Audcent had said earlier, between a senator’s work in Parliament and his or her home.

“There’s a natural tension between the constitutional requirement to be in Ottawa to do your job and the constitutional requirement to reside in your home province where you are mixing with the people you represent.”