Mike Duffy trial: Senate's ex-law clerk says senator residence rules undefined

A former Senate law clerk testifying at the Mike Duffy trial in Ottawa admitted that the rules governing a senator's residency do not includea clear definition ofaprimary residence, how much time a senatorshould spend there or the type of residence it needsto be.

It's the vagueness of these rules, specifically the rules of residencythat, in just the second day of this trial, has begun to form part ofDuffy's defence. The 68-year-old suspended senator haspleaded not guiltyto 30 charges of fraud andbreach of trust, and one count of bribery.

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Residencyis one of thecentral issues in the case against Duffy. He designated his home in P.E.I. as his primary residence, and maintains that's the case, making him eligible to claim meals and living expenses for his time in Ottawa, even thoughhe has lived in Canada's capital since the1970sfor work. The Crown disputes that P.E.I. is Duffy'sprimary residence.

The issue of primary residence is why the first witness at the trial, former Senate law clerkMarkAudcent, could play such an important role in the case.Audcentwent over in some detailthe rules and regulations regarding the eligibility of becoming and remaining asenator. Indeed,one of his duties as clerk was tobrief those who had been named senatorsaboutthe criteria forremaining qualified as a senator, he told Crown prosecutor Mark Holmes at the Ottawa provincial courthouse.

Four criteria

Audcentsaidhe would break those criteria intofour parts:

• Attendance.
• Obligationnot to show foreign allegiance.
• Property qualifications.
• Residency.

Holmes questionedAudcentabout what he would do if he thought someonehad not met one of those eligibility requirements.Audcentsaid his role was that of a resource person and not a policeman.

Instead, he said,if the prime minister wanted to recommend a candidate for the Senate, there had to have been a pre-vetting process to determine whether that person qualifiedin the first place.

Ultimately, Audcentsaid, it's up to the Senate as a whole to decide whether a persondoes or doesn't meet the criteria to be a senator, andwhether he or sheshould vacate theposition.

On the issue of residency, he said that,according to the Constitution, a potential or currentsenator must be a resident of the province for which he or she is appointed.

While there is no one defining criteria within the Senate administration rulesthat defines residency,Audcentexplained,there are "indicators of residence." Thoseinclude physical presence at the residency, the place where his or herhome is and wherefamily lives, and where that individualvotes, pays taxes, and receives government and health service andhassocial connections.

"Every indicator is just part of a package, residence is aquestion of fact," he said. "You gather these indicators togetherand you look at the whole picture. There is no indicator that isabsolute."

But DonaldBayne, the lawyer representing Duffy,saidthat since the constitution required a senator to be a resident of the province they are appointed, that made his residence in P.E.I. his most important residence.

To back up his point,Bayne put pages of the concise Oxford English Dictionary in frontof Audcent, and hadhim read the definition of primary as "of chiefimportance or principal."

He also askedAudcentabout whether specificdefinitions of primary or secondary residences could be found in the thoseadministrativerules.

"I looked hard but I could not find a definitionof primary or secondary residence. Is there one?"Bayneasked.
"Not that I'm aware of,"Audcentsaid.

Audcent agreed with Bayne that there was nothing in the rules that says senators must spend a certain period of time at their primary residence.

As well,Audcentagreed that the rules also do not cover how long a primary residence has to have been owned, whether it has been owned longer than a secondary residence orwhich residence is worth more. Also,Audcentagreed,there is nothing in the rules that prohibit aprimary residence frombeing acottage or seasonal structure.