Is the Senate stuck with Patrick Brazeau and Mike Duffy?

A couple of Senators have been in the news lately for all of the wrong reasons.

Senator Patrick Brazeau was removed from the Conservative caucus after being arrested at his Gatineau home, due to an alleged incident of domestic abuse.  Brazeau, the youngest current Senator, has been a controversial figure since his Senate appointment in 2009, and has recently faced media scrutiny over a variety of issues, including the news he used his former father-in-law's on-reserve address to claim his income as tax exempt from 2004 to 2008.  Brazeau is also under investigation by a Senate committee for possible abuse of his Senate housing allowance.  Senators who live more than 100 km from Ottawa can have a second residence in the capital region and receive up to $21,000 a year to cover that expense.  Brazeau was apparently claiming his father's address as his primary residence, and then collecting the housing allowance for the house he rents in Gatineau.

However, while he is no longer a Conservative Senator, Brazeau can continue to sit in the Senate as an independent, although he faces possible suspension.

Another Senator who has found himself in hot water over his housing allowance is Mike Duffy, who was appointed as a Senator for Prince Edward Island in 2008.  Duffy, who grew up in P.E.I. but has lived in Ottawa for decades, has apparently been claiming a cottage in Cavendish as his primary residence, and then claiming the taxpayer-funded allowance for his home in Ottawa. 

However, in Duffy's case, the residence issue runs a little deeper: while there are very few qualifications for the position of Senator, one of them is that the Senator has to reside in the Province that they represent.  And it would seem that Duffy, while claiming to be resident in P.E.I., pays the non-resident tax rate for his P.E.I. property, does not have a P.E.I. health card (though he recently aked the government to fast-track his application for one) and is registered to vote in Ontario.  All of which raises the issue of whether Duffy was even eligible to be appointed as Senator for P.E.I. in the first place.

Unfortunately, with Canada's appointed Senate, Canadians don't have the option of voting anyone out.  So unless Stephen Harper succeeds in his bid for senate reform (which I hope he does), regardless of any wrongdoing, we might be stuck with these Senators until they turn 75.  For Brazeau, that's 37 years away.

But isn't there something the Canadian public or the Senate itself could do in the meantime?  The rules of the Senate do allow the Senate to suspend a Senator (with pay) and further provide that a Senator who is charged with an offence that may be indictable is immediately placed on leave of absence.

However, removal of a Senator is governed by the Constitution Act 1867.  As I mentioned above, Senators must meet certain qualifications to be eligible to be appointed in the first place.  They are (in brief) that a Senator must:

• Be thirty years of age or over;
• Own property valued at $4,000, over and above any debts;
• Own real property in the province for which they are appointed (and within their District in Quebec)
• Be a resident of the province for which they are appointed; and
• Be a natural born or naturalized subject of the Queen.

Senate seats can be vacated due to death, resignation, or retirement, a Senator can only be removed for the following reasons (again, briefly):

• Failure to attend two sessions of Parliament;
• Taking an oath to or becoming a citizen of a "foreign power";
• Declaration of Bankruptcy;
• Conviction for treason or a felony or any "infamous Crime"; and,
• Ceasing to reside or own property in the represented area

While the Constitution doesn't explicitly spell out who has the power to remove a Senator, it does state that any issues with respect to a Senators' qualifications must be determined by the Senate itself.

That is probably good news for Duffy.  While there might be some question about whether he was even qualified to be the Senator for P.E.I., it seems unlikely that the Conservative majority in the Senate would toss him for that.

For Brazeau, the news might not be so good.  While it appears he meets the residency requirements, he may also be facing investigation and criminal charges for domestic abuse, and possibly income tax evasion.  This could lead to jail time or personal bankruptcy, or could result in him failing to meet the property requirement or missing sessions of Parliament, any of which could result in him being turfed.  And unlike Duffy, at this point, it is unlikely he has many friends in the Senate who will plead his case.