To qualify as a Senator for PEI, Mike Duffy had to own property in the province and be “resident in the Province for which he is appointed.” This was a constitutional requirement for the job. Not a resident? No appointment.
As a Senator representing PEI, he received $80,000. over four years in per diem housing claims for costs incurred while in the National Capital Region (NCR) performing his duties as a Senator.
Since “resident” was not defined in the Constitutional Act, nor in any Senate Rules, and was defined differently in different statutes for different purposes, the question became: what does “resident” mean for the purpose of a Senate appointment?
Mike Duffy had owned and lived in a house in Kanata-Ottawa (part of the NCR) since the 1970s. Born and raised in Prince Edward Island, he had bought a cottage in Cavendish, PEI in 1998. He and his wife spent several months every year living in the cottage, typically from the end of April until the end of October. It was not winterized and, in times of major snowfalls, was inaccessible. The plan was to renovate the cottage so that, when he retired, he and his wife could reside there full-time.
Mike Duffy was alert to questions about his residency. He met with the Prime Minister twice in December 2008 before accepting the appointment. He testified that he asked Prime Minister Harper to appoint him as a senator for one of the vacant seats in Ontario. Harper insisted that the only appointment on offer was as a Senator from PEI.
When Duffy asked him about the disputed “residency” issue, Harper advised him “that accepting the appointment as a PEI Senator simply ‘accelerated’ or ‘speeded up’ making the PEI residence the permanent and primary residence. The Prime Minister advised Duffy that, upon appointment as a Senator from PEI, the effect would be “this is now your primary residence. This is… where you live and this is what you represent, the area you represent in the Senate of Canada.” “Upon his appointment, his PEI residence would become the permanent one just as Mr. Duffy and his wife had intended for a decade.” (paras 137-138 Judgment)
The advice of the Prime Minister was reinforced by that of Senate Law Clerk, Mark Audcent, who also said that, as of his appointment, Duffy’s address in PEI became “of prime constitutional importance” going forward. (paras 139, 142, 190-192 Judgment) When the legality of his appointment was questioned in a newspaper article on December 24th, Duffy contacted Kory Teneycke of the PMO about the article and was advised that his PEI residence fully satisfied the constitutional residence requirement. (para 145 Judgment)
On January 6, 2009, he met with Senate Leader and member of the Harper Cabinet, Marjorie LeBreton, and was assured by her that the PEI residence fully qualified, that there was no minimum time requirement to be spent in the residence, and that the newspaper article was “politics” and should be ignored. That same day, he received a written memo from the Senate Leader and her constitutional advisor, Mr. McCreery confirming that his PEI residence qualified him as a PEI resident “… even if he had lived in Ottawa 99% of the time.” (para 146 Judgment)
On January 7, 2009, Senator-to-be Duffy approached Senator Tkachuk, the vice-chair and senior Tory on the Senate Internal Economy Committee and regarded as the ‘guru’ on Senate rules and procedures. He explained about the newspaper article, his owning a residence in PEI and another in Ottawa, and questioned whether he should claim the housing allowance for the NCR property. Senator Tkachuk informed him, without hesitation that, as Senator from PEI, he had the expenses of two houses (property taxes, insurance, hydro) and that he should most definitely claim the NCR housing allowance as a PEI Senator, exactly as other PEI Senators did… that the claims were entirely within the Senate rules, and appropriate… that he must claim per diems, as failure to do so would only raise questions. This advice was consistent with Senator Tkachuk’s reported public comments on December 3, 2012 that “Duffy’s expenses are entirely within the rules;” “many Senators who own houses in Ottawa make similar claims for housing expenses,” and then after staying in Ottawa “all winter long… they go home for the summer.” “Your primary residence is what you say your primary residence is.” (paras 151,152 Judgment)
Having been so advised, Senator Duffy signed his “Primary Residence Declaration” honestly, sincerely and reasonably believing that it was within the rules and consistent with the advice he had received from all the authoritative sources. The Declaration contains the following words: I, the Honourable… member of the Senate for the province of… declare that my primary residence is more than 100 kilometres from Parliament Hill and that I therefore incur additional living expenses while I am in the National Capital Region to carry out my parliamentary functions… the address of my primary residence in the province or territory that I represent is the following… . (paras 147-148 Judgment)
Over the next four years, Senator Duffy and his wife spent $98,292.49 to upgrade and renovate the PEI residence, including winterizing the home, and dealing with foundation and access issues. He did not sell the Kanata house because he would have needed to rent alternative accommodation or to pay for a hotel while in the city. As suggested by Mr. Bayne, “his reasonable decision to retain the Kanata residence as his ‘NCR’ residence does not detract from the fact that the PEI address was now, from his appointment… his primary residence in the Province he represented… .” (para 154 Judgment)
The Crown called none of the people Senator Duffy consulted (Prime Minister Harper, Ray Novak who was present, Kory Teneycke, Senator LeBreton, her constitutional advisor Mr. McCreery, or Senator Tkachuk) to try to refute any of Senator Duffy’s evidence.
A later “travel policy” adopted by the Senate, commencing in April 2013 and applicable in the 2013-2014 fiscal year, required that “primary residence declarations” were to be accompanied with additional criteria of primary residence, the production of a driver’s licence, health card and proof of location of filing one’s income tax return. “As Mr. Bayne submits, the ex post facto addition/imposition of these… indicators of primary residence is cogent, explicit evidence that they were not previously required.” (para 208 Judgment)
Justice Vaillancourt found Senator Duffy not guilty of fraud and breach of trust relating to his residency and housing claims.
If you had been on a jury hearing these charges, what would you have found? If you had been offered a Senate seat in Mike Duffy’s circumstances, would you have accepted the position? If you were told your “primary residence” post-appointment was in PEI, would you have claimed the same NCR housing expenses as did other Senators representing PEI?
For Prime Minister Harper’s response, see the comments of his lawyer Robert Staley in “This was not Harper vs. Duffy” in this morning’s National Post.