Darn those wacky Senate residency forms! To hear Senator Mike Duffy tell it, anyone could have made the "mistake" that he made when he declared that Prince Edward Island is his primary residence.
Why, he protested last Friday, "the Senate rules on housing allowances aren't clear, and the forms are confusing."
But his Conservative colleague, Senator Pamela Wallin, is quite clear about it. She insists those forms don't ask for your primary residence, period, but merely for your primary residence in the province you represent.
Obviously, then, the primary Saskatchewan residence of a Saskatchewan senator is not her condo in Toronto. Or her apartment in New York. It's in her hometown of Wadena, Sask. Which is a property registered to a ... Pamela Wallin of Toronto.
More confusion! So Duffy and Wallin, both former journalists named to the Senate four years ago by prime minister Stephen Harper, both say the rules are fuzzy. Both point to the actual wording of one section of those Senate residency forms: the part where it asks for "the address of my primary residence in the province or territory I represent."
See? It's asking where you reside when you're there! Not where you reside the rest of the time! Ergo, they say, there's no foul if you really live, pay taxes and have your health card in Ontario — as both seem to do.
But, as Duffy puts it, "I hope the Senate will review the forms to make them clear." Wallin adds, "if there are going to be questions about it, let's sit down and figure out the rules."
The tick-boxes tell the tale
The problem is that, to a non-senator, the rules look perfectly clear already. That's because the ambiguity which the senators claim to see is completely removed by the preceding question on the same declaration form — which they don't mention.
Directly above the address question they refer to, all senators are first confronted by two tick-boxes. They must either tick one, to indicate that, "My primary residence is within 100 kilometres from Parliament Hill," or tick the other, to indicate that it is "more than 100 kilometres from Parliament Hill."
So, you only get one primary residence. Either it's less than 100 clicks from the Hill, or it's not. The Senate wants your primary residence, full stop. It's not asking, as the two senators suggest, where you hang your hat when you're back in the province you came from. Decades ago.
This hole in the senators' arguments is cruelly exposed by the detailed rules they swear to live by. Consider rule 1.5.7, which defines what residence means: "'Primary residence' means the residence identified by the senator as his/her main residence and is situated in the province or territory represented by the senator."
Note the "and." It has to be your singular primary residence, and it must also be in the province you represent. There's no wiggle room. And, this only makes sense, since the Constitution requires that senators reside in the provinces whose seats they occupy. But... since that requirement is so clear, why do Senators Wallin and Duffy suggest it isn't?
One possible explanation could be that their primary residences are not, in fact, in their home provinces.
$42,802.43 — or maybe more
That would be a problem for the Senate as a whole. If it winks at senators from other provinces who really live in Ontario — but claim otherwise and bill for it — then it may need to stop winking, and fast, in order to hang on to what legitimacy it still has. That may explain why outside auditors are now seeking proof that senators are legally resident where they say they are.
Duffy and Wallin object that "legal" residence — meaning, where you pay income taxes and have your health card — is not the applicable standard in the Senate. That's not how we senators define it, they say; we have to live there, but work here. So cut us some slack!
The Conservatives' leader in the Senate, Marjory LeBreton, seemed to endorse that view in a statement noting with approval that Mike Duffy "maintains a residence" in P.E.I. But LeBreton said not a word to suggest that P.E.I. is Duffy's "primary residence," as the Senate's rules say it must be.
Similarly, the prime minister has insisted Wallin was in Saskatchewan for 168 days last year. She says the same herself —but she has refused, for four years, to produce a health card, tax return or driver's licence to show that she's legally a Saskatchewan resident.
As for Duffy, he's admitted that, as the Ottawa Citizen's Glen McGregor first reported, he tried and failed to get a P.E.I. health card before the Senate's deadline of Jan. 31. As he also admits, he pays a higher rate of property tax on his P.E.I. house because the province does not consider him to be a resident.
So he's stuck. He'll have to repay the $42,802.43 in housing expenses he's claimed for his "secondary" home in Ottawa — that is, since the fall of 2010, when Senate started posting expenses online. The bill could be double that if he claimed at the same rate since he became a Senator at the beginning of 2009.
'Nothing to do with residency'
However much he pays back, though, Duffy is not conceding that he's not a P.E.I. resident.
"No, it has nothing to do with residency in P.E.I.," he told the CBC. No glimmer of embarrassment was evident on his face as he said this.
In fact, it has everything to do with residency, because, a) he's repaying the cash because he can't prove he's a P.E.I. resident and, b) he must be a P.E.I. resident to qualify for the Senate at all.
"I'm an Island resident," Duffy insisted. "I'm entitled to be a senator, I've met all of those requirements. The question really is one of accounting. How much time are you here, how much time are you there? The form that you fill in once a year on this matter is vague and I may have made a mistake in filling in that form."
Pressed to say what mistake that might have been, Duffy replied, "It asks for your primary residence in the province in which you reside, and I put Cavendish (P.E.I.) and it asks for your secondary residence, and I put Kanata." That's a suburb of Ottawa. Duffy has been an Ottawa resident for four decades — and now seems to agree that it remains his principal residence.
"The argument among the accountants," he says, "is that, actually, I spend more time in Kanata than I do in Cavendish and, therefore, my primary residence really should be Ottawa, not Cavendish. But the form says the primary residence in the province you represent. So there is no space to say, well — and there is no formula, and there is no rule that says you have to spend so many days."
As we've seen, there is, in fact, a space to say where your primary residence is — in the preceding question. But Duffy is correct that the Senate does not define how many days it takes to qualify as a resident. The provinces do that. As noted above, he does not have a P.E.I. health card and he says he must stick with his Ontario doctors because of heart trouble.
The "argument among the accountants," then, is over. And we know which side won, because Duffy is coughing up the money.
'I really need to correct this, OK?'
Wallin's attempts to deal with these questions have been equally tangled. She has claimed some $350,000 for travel, which she says was mostly to and from her primary residence in Saskatchewan. There are many questions about where she actually went and what she was doing there. She says much of the money is wrongly listed as travel to other places than Saskatchewan. The NDP accuses her of travelling on the public dime to raise funds for the Conservative Party.
But, as with Duffy, a central question is where her "primary residence" really is.
Curiously — although other Senators confirm it — Wallin denied in her own CBC interview that Senators are being asked for tax returns and health cards. And, like Duffy, she said the residency declaration merely asks for "your primary residence in the province you represent."
Pressed on whether the Senate isn't seeking tax returns, health cards and driver's licences, Wallin cut in impatiently.
"No, no, no," she insisted. "No, they're asking for all of our documentation. I really need to correct this, OK?"
Instead, she went on, "What they are saying to us is, please provide us with a variety of things that we can decide and help us assess what is a reasonable thing because the definition of residency is just what I gave you." Meaning, she said, your primary residence in the province you represent.
Sadly, rule 1.5.7 contradicts her. It's not fuzzy. It means primary residence, full stop — not primary residence in Saskatchewan.
Boondoggle or not?
At least two other Senators are also being grilled about their expenses: Liberal Mac Harb and Conservative Patrick Brazeau. In both cases, they do live in the province they represent — Harb in Ontario and Brazeau in Quebec — but the question is whether they really live more than 100 km away from Parliament. Brazeau also faces criminal charges of assault and sexual assault.
Senators Wallin and Duffy, though, are both caught in a conundrum of the Senate's own making. After both leaving their home provinces in the 1970s, they are forced to say they still live there if they wish to be senators at all. But now, they also have to say that the rules are confusing, so as to explain the apparent discrepancy between their actual primary residences and their declared ones.
The Senate as an institution, however, needs the rules to seem clear — and enforced.
Above all, after winking for years at conduct it's now shocked — shocked! — to discover, the Senate needs to show that it's not the boondoggle that so many Canadians think it is.