04.10.2015 09:22 AM

Why Mike Duffy will likely win on the “residency” allegations in court

I used to be the courts and cops reporter for the Ottawa Citizen. I watched Don Bayne do his thing, up close, many times. When Mike Duffy made the decision to retain Bayne, he made a very smart decision.

Here’s just one reason why. In his cross with the Senate bureaucrat offered up by the Crown, Bayne inserts the first reasonable doubt – that is, Duffy needed to only own land in the place he represented. He didn’t actually need to live there.

“Mark Audcent, retired Senate law clerk, testified for the Crown that residence is a question of “fact.” He suggested it could be determined by a “whole package” of facts, like where you have a home, where your family lives, where you vote, where you pay your taxes, where you get government services like a driver’s licence, or health coverage.

But he agreed under cross-examination by Duffy’s lawyer, Donald Bayne, that the Senate never set out clear definitions of “primary” or “secondary” residence, never defined residence for the purpose of determining eligibility to hold a seat in the upper chamber, nor for seeking payment of expense claims.

Bayne suggested repeatedly Duffy had no other choice — Senate rules, policies and guidelines all but required him to declare the P.E.I. cottage as his “primary” residence or risk losing his seat — because the Constitution required all senators to be resident in the province they represent.

Audcent agreed there is a “danger” of a senator losing his seat if he fails to hold property or be resident of the province he represents. He also agreed the $100,000 worth of renovations Duffy poured into his P.E.I. cottage showed a “commitment” to that residence.

…To bolster his argument that Duffy made his declarations in “good faith”, Bayne highlighted a memo from office of the Conservative government leader in the Senate, Marjory Lebreton, to “rookie” senators Mike Duffy and Pamela Wallin (also now facing police investigation over her travel claims.)

Written by Lebreton’s policy adviser Christopher McCreery, it suggested they needn’t worry about “disqualification.”

“I checked all of the authorities on the senate and residency is not defined,” McCreery wrote. “My interpretation is . . . that so long as a senator owns property in his or her province of appointment then they are allowed to sit as a senator from that province, even if they live in Ottawa 99 per cent of the time.”

32 Comments

  1. Ted H says:

    Then I would say a Senator should not be appointed from a province they do not actually reside in, bad judgement on the part of the appointer and that is partly what this is all about politically is it not?

    • canophone says:

      Residency (according to government) is not defined by where you live at any given time. It is defined by other conditions that are specifically related to the service it is associated with.

  2. doconnor says:

    Based on a policy adviser’s claim which is not consistent with any reasonable reading of the text?

    23. (5) He shall be resident in the Province for which he is appointed;

    • Warren says:

      Wayne’s job is to introduce reasonable doubt. A rookie Senator relying on the researched opinion of Senate leader? That’s reasonable doubt, whether you and I agree with that or not.

      PS – Define “resident.”

      • doconnor says:

        resident (adjective): Living somewhere on a long-term basis

        “The mob boss’s accountant said murdering him would be totally legal if he come into my house voluntarily.”

        • !o! says:

          The dictionary definition is not the legal definition.

          • doconnor says:

            Isn’t there a rule that you are supposed to use a certain dictionary for terms not defined in a law.

          • canophone says:

            @docconnor,

            If there is a precedent set, or other definitions elsewhere within legislation, then no.

            In this case, there is no precedent, but there definitions elsewhere within legislation that vary because of the Constitution allowing provinces to set residency requirements. The existing definitions do actually favour Duffy rather than the Crown. Moreover, the residency requirements of many of these definitions are not based on actually living in a province at a given time, as certain presumptions are made about residency in relation to specific services, regardless of address. For example, ff you’re a part time student registered in a class in session, you are a resident of the province that your school is in, regardless of your current address outside of that province; if you’re a full time student, you are a resident of the last province you lived in for 12 FULL consecutive months.

          • canophone says:

            ** Add to full-time student resident condition: For the last 12 full consecutive months for a reason other than full-time school.

      • GFMD says:

        Isn’t that the kind of reliance only available if the offence is strict liability? (I could be wrong wnd welcome an authoritative account of the matter).

        and does anyone know if this is a trial by jury?

        • e.a.f. says:

          its by Judge and in my opinion, when people go with a Judge not a Jury, they think there is a good chance of getting off on a “technicality”.

          • Gayle says:

            Or they are concerned the jury will be too overwhelmed by popular opinion, or doing what they want to do, other than following the law.

      • Nicole says:

        That memo is going to play a large role in the judge’s reasons. Why would Duffy believe that he was doing something wrong if the advisor to the government leader of the Senate told him it was fine? Duffy wasn’t in the position of experience to know the rules. McCreery was.

        I think Duffy gets acquitted on all charges.

  3. Dave says:

    The property-owning qualification, and the residence qualification, are two different things per s. 23 of the BNA Act.

    http://laws.justice.gc.ca/eng/Const/page-2.html#h-5

  4. Joe says:

    The problem is with all senators except those who live close to Ottawa is they spend so much time in Ottawa none of them would qualify as being resident in their home province. Similar to the MPs that go to Ottawa to represent their ridings in Ottawa only to become Ottawa’s representatives in their home riding.

    • doconnor says:

      In the House MPs are expected to go back to their riding every weekend, for a whole week when there is a holiday and months around summer and Christmas. Plenty of time to spend at their primary residence. Note that cabinet ministers and party leaders do spend a lot more time in Ottawa.

      The schedule for the Senate is even less demanding.

  5. Scotian says:

    Got to agree with Warren here. I don’t like it, but his point is accurate and correct as far as I can see from my own vantage point, and it certainly would seem to me to be reasonable doubt. I’ve always suspected that a lot of what Duffy was being accused of fell into that category, because I had some understanding of just how undefined so much of what makes a Senator such and what they can claim is Senate business really is. To be honest I always thought the arguments against Wallen presuming she is charged over her apparent double dipping the Senate for her Corporate Board work happens would be a lot easier to make. Duffy may well come out of this looking like a piggy-wiggy unethical a-hole in how he used this for expence claiming, but actually criminally wrong and/or in violation of the residency rules of the Senate, given the clear lack of clarity on that point I got to agree with Warren. I learned a long time ago that what the law says and common sense says about something does not always match.

    So far the Defence appears to me to be destroying the Crown’s arguments. If this is the way this trial is going to go to the end, this is going to be brutal indeed for the Crown and its witnesses, and that would not bode well for Wright. I’m one that believes Wright was not charged with bribery because the Crown is trying to protect his credibility in court as a witness against Duffy, and if Bayne is able to be this pointed against Wright as he has been so far this is going to be a very bad time for Wright, and I suspect by extension Harper.

  6. Bruce Marcille says:

    Nobody outside Ottawa cares. I live in the damnable place and even 90% of the people here do not care. The guy will get off and the fact that the clerk gave him the OK makes it old news.
    Now, some of you are upset. I understand. But you are part of the tiny, teensy-weensy minority of Canadians who care, between elections, about politics. Hell, almost half of the country didn’t care enough to vote and likely half who did just did it out of obligation.

    After Gomery and the gas plants, how can you think Canadians would care about an abusively broad interpretation of Senate spending rules? The bar was lowered and Canadians now see this as du jour.

    BTW, Hell of a timing issue with the budget and this circus going on – let’s see which one the media watches.

    • Howard Moon says:

      And while you kids are at it get off of Bruce’s damn lawn with your rock music!

    • Matt says:

      Media interest already seems to be declining.

      Day one of the trial both CBC National and CTV National News led off their newscasts with breathless, extensive coverage. The CBC spent the first 13 minutes of the National on Duffy, plus a “special” sitting of the At Issue panel for another 10 minutes.

      Last night? it was the third story on The National with a short 2 or 3 minute review of the days testimony. Didn’t see CTV National News yesterday, so I can’t comment on their coverage.

  7. Duffy is going to walk. And the outcry across the land will be deafening. And there will be nothing to be done to either reform or abolish the Senate of Canada because all the provinces have to agree and that ain’t gonna happen. Ever.

  8. davie says:

    BC Leg raids and sale of BC Rail to CNR were over a dozen years ago, no legal hearings until over half a dozen years ago, judge on the case was reappointed to some other assignment 2 years into the case, just before big shots were to testify under oath, the 2 accused pleaded guilty and the BC Government picked up the tab for their legal expenses. Media gave it as little coverage as possible.The problem was been made to go away.

    Same will happen here. Bribe charges, but no briber! Charges will fall in a plethora of double speak, media will hate Putin or Venezuela or somebody, and the problem will be made to go away.

    I would like to know if there is a connection between the decision to air that clip of a Lib leader interview (complete with unctuous rationale on air about why the clip was aired) and a senate appointment, but something like that either did not happen, or is very well hidden.

    I don’t expect anything from this trial, and, as others have mentioned above, the media will help in making it all go away.

  9. If the requirement to own property in order to be in the Senate seems lax the local residency requirements to run as a Federal MP is non-existent. For a “write-in” candidate all that is needed is for the local ridng association to fill in the paperwork and nominate the candidate. The candidate doesn’t have to register at the local returning office, run a campaign and participate in local debates, set foot in the riding at any time, or even live in the same province. In fact under Elections Canada own stringent rules that candidate will not be able to vote for himself. But once in a while such a underachieveing candidate wins the election and all of a sudden has to grow up in a real hurry

  10. Gayle says:

    You knew there was going to be a problem when the crown argued the court should rely on common sense. Since when does the law allow you to ignore the law and replace it with common sense?

    Anyway, isn’t the real story here the Prime Minister appointing Duffy to the senate so that Duffy can raise money for the conservative party and bill the taxpayers for the expense? Kind of like spending 7 million tax dollars for their reelection campaign disguised as promoting their budget?

  11. John Matheson says:

    Warren is exactly right on this one.

  12. P Brennan says:

    the darn place has no defined rules by sound of how can you break them…waste of money on this part of the case ….

  13. Ronald O'Dowd says:

    Warren,

    Oh goodie! I can go to bed tonight secure in the knowledge that a legal definition exists for the Senate (Headache) of Canada. Those poor Crowns are likely to have their asses handed to them. LOL.

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