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L'affaire Duffy: Will Harper be held to account?

When the Prime Minister appointed longtime journalist and broadcaster Mike Duffy to the Senate it was to represent Prince Edward Island (PEI), not the province where Duffy actually lived, Ontario. 

Duffy was born and raised in PEI and still has, we are told, deep connections there.

The original Canadian Constitution, the British North America (BNA) Act, says a Senator must "reside" in the province she/he represents. But the notion of "residence" is, apparently, "undefined."

The Conservative Leader in the Senate, Marjorie LeBreton, and Prime Minister Harper have argued that Duffy's intimate connections to the Island qualify him to represent it in the Senate, even if he is not a resident in the "normal" sense of the word.

Carleton Professor Ian Lee has argued that the Senate residency requirements are silly and impractical, because Senators must spend a significant part of the year in Ottawa -- ergo, must, in effect, have two residences.

Lee overlooks the fact that the framers of the Constitution considered the Senate to be an instrument of federalism, a means to assure provincial representation at the centre, not a house of political patronage.

In that sense, the framers were concerned not so much with Senators' living arrangements after they took office, as with their bona fides as authentic representatives of their provinces at the time of their appointment.

That is why the BNA Act stipulates both that Senators should own property in their home provinces and should "reside" there.

Mike Duffy seemed to take the attitude that since the Prime Minister considered him to a "resident" of the Island for the purposes of representing it in the Senate, he was entitled to the housing allowance for his Ottawa home.

He now admits that he may have been "mistaken" about that -- but puts that "mistake" down to a "lack of clarity" in the rules.

Two fallen stars: Duffy and Wallin

Another broadcaster and journalist turned Conservative Senator, Pamela Wallin, faces a similar conundrum.

She represents her "home" province of Saskatchewan (where she owns property -- a business, in fact -- and has deep, lifelong connections), but her principal residence is, in fact, in Toronto.

Wallin is not in trouble over her Ottawa housing allowance. Her principal residence, unlike Duffy's, is definitely not in the National Capital region.

Her problem is taxpayer funded travel.

Senators can claim travel back to the provinces they represent, and elsewhere for official government business. There is some concern that Wallin claimed travel to places other than Saskatchewan and for partisan rather than government purposes.

That case is not yet resolved, although it is telling that once the investigation got under way, Wallin resigned her position as Chair of the Senate Committee on National Security and Defence.

Both Wallin and Duffy were high profile, star appointments by the Prime Minister.

Some former colleagues hoped, at the outset of their tenure, that the two one-time journalists would rise above the muck of political partisanship and assert a measure of independence.

There have been Senators, historically and in the present, who have successfully carved out salutary and independent roles for themselves: constitutional expert, Eugene Forsey; former Mayor of Windsor, David Croll; one time broadcaster and feminist pioneer, Florence Bird; and, currently, former Quebec government official, Jean-Claude Rivest, scientist and academic, Kelvin Ogilvie, and former advisor to Ontario Premier Bill Davis and Prime Minister Mulroney, Hugh Segal (tireless advocate of a guaranteed annual income).

Duffy and Wallin are not part of that proud and honourable tradition.

They have played highly partisan roles, allowing the Conservative Party to use them for fundraisers and as partisan media spokespeople on contentious issues.

The Senate: home for political friends and back-up bench strength

One might think that people with Wallin's and Duffy's reputations would be able to strike a deal with a Prime Minister who wanted to boost them to the upper house, in order to burnish his own reputation.

They could have accepted their appointments on the condition that they would not do fundraisers or be used as Party spokespeople.

And they could have insisted on their right to speak their minds on subjects close to their hearts (as do Conservative Senators Segal and Rivest, among others), all the while hewing to the Party line on crucial votes.

They chose a different course, which is their right.

If the Senate ever, even partially, fulfilled the role of a balancing "regional" or provincial voice in Canada's federal institutional set-up, it long ago abandoned that role.

Today, for the most part, the Senate is nothing more than a means for a Prime Minister to reward his political friends and, when necessary, reinforce his Party's bench strength.

The idea that Senators advocate for the interests and views of their regions and provinces -- over and above their partisan affiliation -- has become almost entirely a fiction.

Duffy and Wallin are just par-for-the-course in enthusiastically taking on narrowly-focused partisan roles.

The PMO now directly involved in scandal

Now Duffy is in really deep trouble, and he has succeeded in dragging the Prime Minister's Office into the quagmire.

In order to stonewall the investigation of his housing expenses, Duffy paid back the full amount notionally owing (over $90,000), before anyone asked him to. Except, of course, it was not Duffy himself who paid the money back. The Prime Minister's Chief of Staff, wealthy Bay Street denizen, Nigel Wright, paid the full amount, out of his own very deep pocket.

Neither Duffy (as required by Senate rules), nor Wright, voluntarily disclosed this astonishing and very generous gift. The Parliamentary Conflict of Interest and Ethics Commissioner, Mary Dawson, has now launched an investigation.

The whole affair is starting to look like a frantic and improvised cover-up operation.

The notorious Watergate Affair of the 1970s was the archetypal example of how the cover-up can exceed the original offence.

Watergate started as a "second rate" burglary of the Democratic Party's National Committee headquarters, and ballooned into a major cover-up that, in the end, brought down a President.

The Duffy Affair started with a Senator claiming monies to which he was not entitled (by his account "innocently," because of "unclear rules").

It has now become a complicated web of intrigue and deception that has crept right up to the Prime Minister's door.

A Canadian PM with a well-trained majority has lots of means to defend himself

In the United States, the constitutional separation of powers allowed an independent Congress to aggressively investigate Watergate.

In Canada, we do not have separate powers.

The executive, in our system, rises out of the legislature. That executive is supposed to be a creature of Parliament and accountable to it -- at least, that's the theory.

In fact, what we currently have is a kind of majoritarian quasi-dictatorship.

A Prime Minister elected with only 39 per cent of the vote has succeeded in dominating, and even, at times, bullying Parliament.

Just think of the outrageous and unprecedented massive omnibus bills the Harper government has successfully shoved through the system. There have been loud squawks of protest from the Opposition and from experts in parliamentary process -- even mild objections from the Conservative House Speaker -- all to no effect.

The Prime Minister has got much of his agenda on law and order, the environment and many other matters through Parliament in record time, with very minimal debate and almost no detailed examination.

The Canadian system allows the Opposition to put questions to the Government in the House, and that can make for interesting theatre.

However, Committees and any other means of conducting serious and thorough investigations are all completely controlled by the governing Party.

Prime Minister Harper will feel some heat for a while. But he may try making one or two sacrifices, and then let the matter lie without further investigation. There are, after all, still more than two years before the next election.

And so, while the Prime Minister seems to be in trouble now, that trouble may not last.

He has plenty of tools at his disposal.

To keep up the pressure on the government, and get to the bottom of what actually transpired in the Duffy Affair, the opposition will have to be extremely nimble and resourceful. 

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