© Photo special to The Guardian
A constitutional law expert in P.E.I. says Mike Duffy never met the residency requirement to represent P.E.I., regardless of approvals he may have received from the PMO and government leader in the Senate.
Retired UPEI professor David Bulger says the Canadian constitution states clearly senators must reside in the province for which they are appointed.
“The intention of the drafters was that senators be grounded in their home provinces,” said Bulger in an interview with The Guardian Monday.
“Members of parliament can live in one province and represent a riding in another, and to counteract that in the Senate, senators were supposed to live where they represented… His lawyer is taking the strongest tack he can to try and get Duffy off the hook, but it doesn’t mean that these things are necessarily correct.”
Bulger’s comments were in reaction to explosive claims Monday by Duffy’s lawyer, Donald Bayne, during a news conference in Ottawa.
Bayne told reporters the prime minister’s office urged Duffy to repay his living expense claims last February “not because he had anything to hide or had made inappropriate claims, but because the PMO had decided that they wanted to sweep a political embarrassment to their Tory base under the rug.”
Bayne said Duffy checked with the Conservative leader in the Senate, Marjorie LeBreton, just days after his initial appointment to the Red Chamber, to ensure he met residency rules.
“He was assured both that he clearly satisfies constitutional qualifications and further, that it does not matter how much time you spend in Ottawa or in the province of your appointment,” Bayne said.
After a story appeared in the Ottawa Citizen in December 2012 raising questions about Duffy’s living expense claims for his Cavendish cottage, the P.E.I. senator again sought counsel, this time from the PMO, Duffy’s lawyer asserts.
Nigel Wright, chief of staff to the prime minister at the time, told Duffy in an email he “complied with all the applicable rules,” adding the media report appeared to be a ‘smear.’
During his news conference Monday, Bayne also pointed to the independent auditors report from Deloitte that looked into Duffy’s expense claims. That report said rules on residency for senators are unclear.
But Bulger does not agree.
He says the wording in Section 23(5) of the Constitution Act clearly specifies a senator “shall be resident of in the province for which he is appointed.”
“Shall means must,” Bulger said.
“Unless you can show that it doesn’t mean ‘must’ you assume that ‘shall’ means ‘must’ when you find it in legal writing… I know the founders intended senators to live in the provinces that they represented.”
Bulger taught constitutional law at the University of Prince Edward Island for many years and has been called on by various governments for his expertise in understanding and interpreting government law.
He says the assurances Duffy received from the PMO and LeBreton do nothing to change his mind that Duffy never met the basic requirements to represent the Island in the Senate.
And establishing his residence eligibility is key, Bulger said.
“The whole RCMP investigation is based on the fact he was making claims on public monies he wasn’t entitled to because of the residency issue,” he said.
“As far as I am concerned, he was never validly appointed and he doesn’t validly sit.”