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Why Senate Controversy Is Unique in One Province

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Saskatchewan is not often in the news. What happens here isn't of much interest to the rest of you. In fact, by starting this post with the word "Saskatchewan" I likely caused most HuffPost browsers to move on to something else.

Another thing that doesn't make the news very often is the old BNA Act - as in British North America Act, the U.K. Statute that served as one of Canada's central constitutional documents for well over a century. We have called it the Constitution Act, 1867 since 1982, when it was "patriated". This hasn't made it more interesting to most people.

When you have a news story that combines Saskatchewan and the BNA Act, the only thing that could make it less interesting is if it was also about the Senate. If you're still reading, that is the very definition of a slow news day.

The Senate has been much discussed of late, since we began to learn how much those sober second thinkers were costing us. Of special interest has been travel expenses incurred by Senators traveling back and forth between Ottawa and the provinces they were appointed to represent.

The Senate's Standing Committee on Internal Economy, Budget and Administration, chaired by SaskaSenator Dave Tkachuk, has been investigating the travel claims of a few Senators, because they aren't supposed to charge for travel home if they don't keep a residence there. And, more important, to even qualify as a Senator, you're supposed to be a "resident" in the province you were appointed to represent.

This is a special burden on Saskatchewan Senator Pamela Wallin. The controversy surrounding her residency exposes something unique about the character and culture of the province she comes from. Many Saskatchewan people, like Senator Wallin, live elsewhere. We are everywhere in this country, except Saskatchewan. You probably don't notice us, because we don't have any particular identifying characteristics. We've learned to get along. There is no distinctive Saskatchewan accent, though we do pronounce "Saskatchewan" less painfully than the rest of you. We're slightly nicer than normal.

Senator Wallin, as every Canadian knows, had a long career in broadcasting before she came out as a Tory and Prime Minister Harper gave her a Senator's unlimited travel pass. During her television career most people didn't know she was from Saskatchewan. But we knew. Just like we know that Peter Gzowski started his career in Moose Jaw; that Governor General Jeanne Sauve was born here; that nice-guy Dragon's Den Millionaire Brett Wilson grew up here; that the late Brian Dickson, the great Chief Justice of the Supreme Court, went to high school here.

We can all recite a long list of great Canadians from here who have made significant contributions to the political and cultural life of this country. Many, if not most, pursued their careers outside the province they called home. Our habit of moving away has been good for the Canadian talent pool and essential to our own gene pool. Leaving home is what we do. We consider it part of growing up.

Little Pam Wallin, growing up in Wadena Sask., aspired to be a journalist, television personality and national treasure. There are no jobs like that in Wadena. Pam, like so many Saskatchewanians, had to leave home to find work that suited her. Sure, from time to time, there are jobs here, but almost no national-profile perky broadcaster jobs. Same thing happened to Gordie Howe. There are no NHL teams in Saskatchewan, but he didn't cease to be Mr. Saskatchewan when he became Mr. Hockey in Detroit.

If, in fact, it turns out that Senator Wallin does not live here, most of us would think it actually makes her just that much more representative of the people of this province. We don't expect people to live here. Sure, there are things to do here and reasons to stay; but there are way more things to do elsewhere and a lot more reasons to leave.

Last week, when the wind howled us down to a lethal -48 degrees, I was wondering why anyone would live here. With all the communications technology available these days, we could give this frozen flat wasteland back to the buffalo and operate the entire province remotely. There would still be a Saskatchewan, but no one would actually live here. Surely, we wouldn't lose our Senators?

Senator Wallin doesn't need a residence in Wadena, she can stay with friends and family. There ought to be a "couch surfing" exception to the Constitution.

So why did the Prime Minister appoint a Saskatchewan Senator who did not live in Saskatchewan? One can only speculate. Perhaps, when he was considering Senate appointments, he looked over his caucus roster of people currently "resident" in Saskatchewan - guys like Maurice "Murder, He Wrote" Vellacot, and that Vic Toews wannabe, Gerry Ritz, and the rest of them - and wondered if he couldn't do better by looking beyond our borders.

However, the Constitution is pretty clear. The qualifications a Senator must possess are set out in section 23 of the Constitution Act, 1867. Among those qualification is this: "He shall be resident in the Province for which he is appointed." There doesn't appear to be any way around it, despite the fact that most of us are happy to have Senator Wallin represent us. Or don't care.

But maybe the solution lies in those very words "He shall be resident in the province for which he is appointed." Senator Wallin is not a "he." Right. Does that mean she can't be a Senator? No, of course not. Who would even suggest such a thing? Well, only the Government of Canada and the Supreme Court.

Yes, the Senate provisions of the Constitution Act, 1867 were at the center of a milestone in advancement of the status of women in this country. I'm talking about the famous "Persons Case", decided in 1929. The case dealt with section 24 of the Act, which empowers the Governor General to "summon qualified Persons to the Senate."

Did the phrase "qualified Persons" include women? Up till that point, it had been assumed that it did not and the Supreme Court of Canada confirmed that view. The case went over to England to be heard by the Judicial Committee of the Privy Council which was, at the time, Canada's final appeal court.

The JCPC, in a long and boring, yet extremely important, decision said "poppycock" or something English like that and declared that women were indeed "Persons" qualified to be appointed to the Senate. It is true that, at the time the BNA Act was written, women would not be considered qualified for the Canadians Senate, but the learned law lords ruled that the BNA Act "planted in Canada a living tree, capable of growth and expansion within its natural limits." In other words, the times had changed and the constitution had to as well.

It seem to me that "the living tree doctrine" can be used to help out our embattled Senator from Wadena.

Just as past understandings of the word "Person" ought not to prevent women from taking their rightful place in the Red Chamber, it can be argued that the living tree that is our Constitution is capable of growth and expansion to recognize that one does not have to have a Saskatchewan drivers license and health card to represent the people of this province.

It seems to me that the legitimate representative capacity of Senator Wallin can be recognized if we interpret the word "resident" in subsection 23(5) of the Constitution Act, 1867, to mean "can be seen from time to time at the Co-op". As long as she remains "one of us" it shouldn't matter where she lives.

Now that this issue is resolved, the Senate can return to it traditional quiet, sleepy place beyond our notice. If the Senate is to survive as an institution, Canadians need to remain unaware of it. The less we hear about the Senate, the less we're annoyed by it.

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