Mike Duffy got briefing on residency rules, Senate clerk says

With a retired Senate law clerk on the stand, lawyers got into the question of Mike Duffy’s “primary” residency.

OTTAWA—The complicated question of just where suspended senator Mike Duffy had a “primary” residence began to be probed in depth Wednesday, with much hanging on definitions, rules and senators’ understandings.

Duffy’s lawyer laid out Oxford dictionary definitions and mounted an argument that Duffy’s P.E.I. cottage at the time of his 2008 appointment became his main or “primary” residence — and was formally designated by Duffy as that — because his right to hold a Senate seat under the constitution depended on having a residence in P.E.I.
Under cross-examination, a retired Senate law clerk agreed that it was crucial for all senators to have a residence in the province they were appointed to represent — that it was in fact a constitutional requirement.

Mark Audcent said he assumed that Prime Minister Stephen Harper and his Privy Council advisers “pre-vetted” Duffy’s qualifications to be a senator from Prince Edward Island.

However, Audcent said there are no “absolute indicators” of just what residence means. The Senate has never defined what it means for constitutional purposes, he said.

Audcent said that upon being nominated, the constitutional validity of a senator’s appointment would not be challenged by the Senate’s administration officials.

“I viewed my role as a resource . . . I never viewed my role as being that of policeman,” Audcent said.

Yet if a senator failed to maintain a presence or property in his or her province, a question about his qualification for the seat could arise, he said. Questions about disqualification or whether in effect a Senate seat was “vacant” would only be determined by the Senate itself, Audcent said, though the Senate has “never” disqualified a senator on that basis.

Nevertheless, every senator gets an orientation briefing outlining the Senate’s expectations of attendance in the chamber, and their duty to retain property and a residence in the province of their appointment, and so did Duffy.

Duffy is facing 31 charges including fraud, breach of trust and bribery in connection with alleged misuse of Senate funds. Audcent said Duffy got his briefing the day after Harper announced his appointment on Dec. 22, 2008.

That was amid a prorogation crisis, and Harper — who had just stared down a bid by the Opposition to defeat his government — had named Duffy among 18 senators in one fell swoop.

During the hearing Wednesday, Duffy sat taking notes from time to time, listening at other moments with his hand on his chin, impassive.
Audcent cited solicitor-client privilege in declining to discuss specifics of his advice to Duffy over his time in the office.

But Audcent said he advised all senators to have a secretary track the time spent in the province of their appointment to avoid embarrassing questions. He said he warned senators who have Senate, government and personal demands on their time that they should guard against becoming too “comfortable” in Ottawa.

“I’d recommend their secretary keep track of how many days they spend in their home provinces because there is a tendency to become comfortable when you have to sit here to attend senate Sittings from September to June,” he said.

But Audcent said there is no indicator of residence “that is absolute,” saying it’s a whole package of facts, such as “physical presence and domestic arrangements.” He pointed to an individual’s participation in the community — where you have a home, where your family lives, where you vote, where you pay your taxes. Then there is where you get government services, said Audcent, naming things like a driver’s licence, health coverage, and where you have “societal relations.”

Duffy’s lawyer Donald Bayne suggested those were Audcent’s “personal” indicators of residence. Bayne argues the question of residence for the purposes of claiming living expenses, as Duffy did, is far from cut-and-dried.

In his opening statement, he noted the Income Tax Act has a very flexible definition.

The question is important in Duffy’s case because he is alleged to have fraudulently claimed living expenses for a secondary residence in Ottawa, when in fact the RCMP and Crown allege Ottawa was his primary residence, and he wasn’t eligible for $82,000 in living expenses as if he was travelling from a primary residence in P.E.I.