The Senate has always been the problem child of Confederation. It has never lived up to its expectations to be a deliberative body representing the interests of the different regions of Canada. Almost from the moment the Senate was created, there were calls for its reform, even its abolition.
Throughout its 145 year existence, the Senate has soldiered on. At times it has been ridiculed. Rarely has it been praised for some of the important work that it has done in scrutinizing legislation and in studying serious public policy issues like mental health and the legalization of marijuana.
More often than not the Senate has been ignored. Those days have likely past. The genie of transparency has been let out of the bottle and now unleashed it will not be able to be contained.
The Senate now faces the most critical challenge to its legitimacy in recent history. It is not clear whether it will be able to face that challenge. It must heal itself or it will become a perpetual political punching bag.
It has started with Senatorial expenses but that is only the tip of the iceberg. Expenses are about whether Senators are entitled to certain funds. The next threat is the constitutional requirement for residency. This challenges whether some Senators are entitled to be in the Senate at all.
The Constitution requires that a Senator "shall be resident in the Province for which he is appointed." It further states that "The Place of a Senator shall become vacant. . .if [a Sentaor] ceases to be qualified in respect of Property or of Residence…". What does it mean to be "resident" in the Province for which one is appointed? Who determines this? The Constitution further provides that if a question arises respecting the qualifications of senator or a vacancy in the Senate, such questions shall be heard and determined by the Senate.
The Senate clearly has the constitutional power to define residency. It never has. In fact, it does not appear that the issue has ever been raised in the Senate. Until now.
If ever there was a case that cried out for the Senate to exercise its constitutional powers and indeed its duty to define residency and declare the place of a Senator vacant it was Senator Andy Thompson. The Senator from Ontario reputedly lived in Mexico – he was famously mocked by the Reform Party who brought a mariachi band to the Senate (Canadian politics was much more fun years ago). Thompson was suspended by the Senate not for failing to meet the residency requirements but for his horrible attendance record. Ultimately, Mr. Thompson resigned.
For much of its history, the Senate has operated as a Gentleman's Club. Whether it was by tacit agreement or by neglect, Senators did not question the residency of other Senators. And the opposition or the media did not seem to notice. They do now.
In a post-Duffy politics, every Senatorial appointment from now on will be rightly scrutinized by the media and by the opposition questioning whether the appointee meets the constitutional residency requirements. The Governor General – who formally appoints Senators – would be within his rights and well-advised to demand assurances from the Prime Minister that the proposed Senator meets all constitutional qualifications.
If the Senate does not act – and soon – to define the residency requirements and act on them, the courts likely will. It is only a matter of time before the Senate finds itself on the wrong end of a legal challenge. Courts are likely to defer to the powers of the Senate in many things but they are unlikely to defer to the complete failure of the Senate to act on this issue. For those that think that the courts would never wade into determining Senate qualifications, I would refer them to the statute of the Famous Five on Parliament Hill (once featured on the back of the old $50 bill). In the Persons Case, the Government of Canada asked the courts to determine whether the phrase "qualified persons" included women for purposes of appointment to the Senate. It is not much of a stretch to say that the courts could and would interpret the meaning of "resident in the Province for which he is appointed".
Residency is not some archaic constitutional requirement like the $4,000 property requirement. It goes to the raison d'etre of the Senate as a nationally representative body.
Post-Duffy, the Senate will never be the same. The age of gentleman's club is over. The question is whether the Senate will be able to heal itself or whether it will completely lose the faith of Canadians.
Adam Dodek is a founding member of the University of Ottawa's Public Law Group and the author of The Canadian Constitution (Dundurn 2013).