PMO lawyer disagreed with Harper on Senate residency criteria

OTTAWA — The former lawyer for the Prime Minister's Office says he was taken aback when Stephen Harper insisted that owning $4,000 worth of property in a province was enough to qualify a person to represent it in the Senate.

Benjamin Perrin began his testimony Thursday at Mike Duffy's fraud, breach of trust and bribery trial, where the Crown took him through early PMO discussions around Duffy's contentious Senate expenses.

The entire Duffy controversy was sparked in late 2012 when reporters and legal experts began questioning both Duffy's housing allowance claims, and his eligibility to sit in the Senate for Prince Edward Island. He had lived and worked in Ottawa for decades before Harper made him a senator.

Perrin, now a law professor at the University of British Columbia, says he was asked to study the question of a person's qualifications for representing a province in the Senate.

He said the PMO was interested in protecting Conservative senators from such questions. Duffy, Saskatchewan Sen. Pamela Wallin and Nunavut Sen. Dennis Patterson had come under scrutiny.

The Constitution points to two main qualifications — that a person hold $4,000 worth of real property in the province and that they be "resident" in the province. It's the resident part that had become contentious for Duffy, Wallin and Patterson.

Perrin wrote a memo for the prime minister in February 2013, after he researched the limited jurisprudence on the issue and other legal materials.

"(I) essentially proposed a contextual test which would allow for a whole list of different factors to be considered to determine whether or not someone would have sufficient personal connection to the province to which they would be appointed, such that they could fulfil this representational objective," Perrin told the court, without specifying the "factors."

Perrin's view matches that of former Senate legal clerk Mark Audcent, who told the court in April he felt there were personal indicators of whether a person is actually "resident" in a province, but no single definition. Crown prosecutor Mark Holmes has also said he doesn't believe Duffy was constitutionally qualified to represent P.E.I.

Harper's then-principal secretary, Ray Novak got back to Perrin with the prime minister's response: Harper said owning $4,000 equaled residency. The subject was closed.

"I was immediately taken aback by the prime minister's decision that if you simply owned $4,000 worth of property, that made you a resident," Perrin said.

"To me, both legally and practically, it seemed untenable. I would not be able to consider myself a resident of Nunavut having never visited there simply by having $4,000 of real property."

Duffy's constitutional eligibility is not part of this trial, but rather the fact he collected $90,000 in expenses for living in his Ottawa home and then had them secretly repaid by Harper's former chief of staff Nigel Wright.

Crown Prosecutor Jason Neubauer spent most of his time Thursday asking Perrin about his communications with Duffy's lawyer, Janice Payne, as a secret deal was struck to have Duffy tell the world he was repaying his expenses.

Perrin's appearance at the trial follows Wright's testimony.

Perrin told police last year in an interview that Wright informed him of the payment during a meeting and that Novak, Harper's current chief of staff, was also in the room.

Novak, through a Conservative campaign spokesman, has denied knowledge of the payment.

Harper told the Commons that Wright did not tell others in his office about the payment, and has declined to directly address the contradictions raised over the course of the trial.