Courts and Eligibility to the Senate

I wrote something stupid here earlier. I thought it was very clever, of course. But I didn’t read the Constitution Act 1867, carefully enough. Of course the courts cannot pronounce on the qualifications of a sitting Senator, as Aniz Alani was kind enough to point out to me.

Making a public fool of oneself is an occupational hazard of blogging, of course, and the reason why many smart people say one should not do it, or at least why one should wait for tenure to do it. But since I’m a fool, the advice is lost on me. Reader beware though.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

8 thoughts on “Courts and Eligibility to the Senate”

  1. The word resident is used twice in two different documents with different meanings.

    At law, any practitioner or professor of Private International Law would tell you that there is a significant difference between residence (primary or secondary), ordinary residence, habitual residence, and domicile (residence for legal purposes).

    It’s not unusual when looking for a clearer meaning to look to the text in the other language, and yet no one seems to have done that in this case.

    In the Senate travel policy, the same word is used in English and in French – residence and “résidence”.

    Not so for the qualification to be a Senator which is found in the BNA Act. In the English text, it says:

    “Qualification of a Senator

    23 (5) He shall be resident in the Province for which he is appointed;”

    while, the French text says:

    « 23 (5) Il devra être domicilié dans la province pour laquelle il est nommé »

    Anyone who watched the last Quebec election, where McGill students were disqualified from voting because they were resident but not domiciled, knows there is a difference – even if they can’t quite get the hang of it.

    You can have two residences, but you can only have one domicile.

    1. The trouble is that the French text of the Constitution Act, 1867, is not official. It is a made-in-Canada translation of the BNA Act, 1867, which was enacted in English only. It would have taken a constitutional amendment to give official standing, and that amendment was never enacted.

      1. Thanks for the clarification. I note in the tabled translation committee report in January they change the text to “résider”.

    2. In any event, however, this is an issue that goes to the substantive question of Mr. Duffy’s eligibility, and not the preliminary matter of who can authoritatively determine it.

  2. The way I see it, you’ve simply established that your blog has, aside from standing the test of time (3 years being phenomenal in the world of single author legal blogs), acquired a quasi-peer reviewed quality.

    I vote for bringing back a version of your original post, which from what I recall was a forceful argument in favour of why the Court’s should give effect to the eligibility requirements set out in the CA1867 (and still may, in my opinion, in certain circumstances that are probably limited to cases before an individual is formally summoned to the Senate and thus styled a “Senator” within the meaning of s. 33). Your analysis may also pertain to the sort of inquiry the Senate itself might embark upon if such a question arose post-appointment.

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