Opinion is divided about whether senators Mike Duffy and Pamela Wallin were qualified to sit in the Senate as representatives of P.E.I. and Saskatchewan, respectively.
The two now suspended senators were clearly worried enough about their qualifications that shortly after their appointments, an opinion was sent to them in early 2009 by Christopher McCreery, who was at the time a senior political aide to Senator Marjory LeBreton, the government Senate leader.
McCreery reported that his research into the Senate's nearly 150-year history revealed a senator's residency has never been challenged, and no senator has ever been expelled from the Senate because of not living in, or being from, the province he or she was appointed to represent.
In a two-page memo addressed to Duffy and Wallin, McCreery wrote he could find only nine senators who were disqualified from being senators, and that was not for residency reasons, but for non-attendance, and all before 1915.
McCreery points out that the Constitution specifies that senators must own property in the province they represent and they "shall be resident of the province for which they are appointed."
Since the Senate is "master of its own house," wrote McCreery, it is free to define the meaning of what "shall be a resident" means.
"Nowhere in the rules of the Senate of Canada are questions of residency or other qualifications (other than attendance) mentioned," he said.
Residency 'not defined'
He continued, "I checked all the authorities on the Senate and residency is not defined."
His conclusion: as long as senators own property in the province they were appointed to represent, they can sit in the Senate, even if they spend 99 per cent of their time in Ottawa.
McCreery, reached last week by phone in Halifax where he works as private secretary to the Nova Scotia lieutenant-governor, admitted he was being a bit "flippant" when he used the 99 per cent figure. And, he hastened to add, he did not mean his memo suggested Duffy could claim expenses for a secondary residence in Ottawa.
But, he said, his research convinced him a senator doesn't have to be a resident of the province before they are appointed to represent it.
"You have to own the $4,000 in property when you take your oath, but not when you're initially appointed," he said, meaning a Senate appointee could purchase the property after being named by the Governor General to the chamber.
Asked if Duffy and Wallin were concerned about their residency qualifications and had asked for reassurance, McCreely said, "I think that was what was going on at the time."
LeBreton has denied that the memo written by her political aide was instigated by her.
Duffy lived in Ottawa, Wallin in Toronto
Duffy lived in Ottawa for four decades before he was appointed as a P.E.I. senator, and Wallin lived in Toronto when she was named to represent Saskatchewan.
McCreery said he doesn't consider himself a constitutional expert, as Duffy described him when he tabled McCreery's memo in the Senate during a fiery speech in the debate over his suspension.
McCreery has a doctorate in history and has written several books on the Order of Canada and other honours.
David E. Smith of Ryerson University, who has written a definitive book on the Senate, agrees with McCreery. In a phone interview, he said the residency requirements seem restrictive.
"They're more restrictive in the 21st century than in the 19th," he said. "Qualification [about residency] might be interpreted differently over a 100-year period, if they were ever interpreted in the first place."
He too cautioned he wasn't talking about expenses.
A different read
Sébastien Grammond, a constitutional lawyer, has a different read on what the Constitution says about qualification for the Senate.
Grammond, reached by phone at the University of Ottawa, where he is dean of the civil law faculty, said the Constitution stipulates, "You have to own land, and you have to be resident of the province. So the fact that you own land is not enough, I think. They are two distinct requirements, they must mean something."
Grammond points out a clause in the Constitution that spells out how a senator's seat can be declared vacant. The section says, "If he ceases to be qualified in respect of Property or of Residence."
Senators other than Duffy and Wallin have lived outside the provinces they were supposed to represent when they were appointed.
Senator Carolyn Stewart Olsen lived in Ottawa when she was appointed to be a New Brunswick senator later in 2009.
Lowell Murray, now retired, lived in Nova Scotia when he was appointed to represent Ontario.
To Grammond, it doesn't matter if a senator has never been disqualified over residency. "Non-compliance over a period of time does not make the requirement disappear."
So, does Grammond believe Prime Minister Stephen Harper should not have appointed Duffy as a P.E.I. senator, or Wallin as a Saskatchewan senator?
"I would like to study the issue in more detail, but yes, that might be my conclusion."