Senator Joyce Fairbairn is two years away from the Senate’s mandatory retirement age of 75 but the odds of her ever sitting another day in the Senate are slim to non-existent. She has been diagnosed with Alzheimer’s Disease and left Ottawa earlier this year for her home in Lethbridge, Alberta where she will receive round-the-clock care. Earlier this year, a geriatric psychiatrist declared her to be “legally incompetent” because of her affliction.
And yet, after the determination that she was “legally incompetent” she continued for several weeks to vote in the Senate and her office continued to spend taxpayer dollars. Senator Fairbairn is a member of the Liberal caucus, has been a senator since 1984, and, among other accomplishments, was the first woman in our history to be the Leader of the Government in the Senate. (The current Leader of the Government in the Senate, I should note, is also a woman: Senator Marjory LeBreton.)
So what are we to make of all this?
First of all: Under the rules as they exist, neither Fairbairn nor the the Liberals have done anything that would appear to violate any law or procedural prohibition.
Let’s review Sec. 23 of The Constitution Act which sets out the qualifications of a Senator:
- A Senator must have reached the age of 30.
- A Senator must be a natural-born subject of the Queen. (So, born in Canada or any Commonwealth country.)
- A Senator must own property in the district he or she represents worth $4,000.
- A Senator’s net worth must be at least $4,000.
- A Senator will maintain a residence in the province in which she or he is appointed.
Senator Fairbairn meets all those qualifications.
Section 31 of the same Act sets out the reasons a Senator may be disqualified and lose his or her Senate seat:
- The Senator fails to show up for work in the Senate for two consecutive sessions of Parliament.
- The Senator swears an oath to a foreign power or becomes a citizen of a foreign power.
- The Senator becomes bankrupt or insolvent.
- The Senator is convicted of Treason or “Felony or of any infamous crime”.
- The Senator no longer satisfies the property requirement.
That’s it. Under Section 31, there are no grounds for the Senate to move to take away Senator Fairbairn’s seat.
But she voted — in the Senate – after a psychiatrist had declared her “legally incompetent.”
Ok: What of that? Did she all of a sudden display some strange voting patterns? Was she disruptive in the Senate? Did she cause a whole lot of headaches for her Liberal Senate caucus colleagues? Answer: No. No. And, so far as we know, no.
In other words, Senator Fairbairn continued to vote with her caucus (as she would have been expected to and as all non-Alzheimer’s sufferers in her caucus did), and was not disruptive.
Some news reports indicate that her office actually spent less money on staff, travel, etc. after her diagnosis compared to other years. This would seem a rational and sensible thing. I believe Senator Marjory LeBreton was unwise to suggest that allowing Senator Fairbairn to vote after her designation as “legally incompetent” would bring her chamber into disrepute. I can’t tell you how many times I’ve sat in the press gallery in the Senate and counted anywhere from a quarter to a third of senators asleep at their desks. Sleeping senators bring the red chamber in to disrepute. If Senator LeBreton (who, I should note, is admiring of Senator Fairbairn’s work and sympathetic to her plight) is interested is in improving the reputation of the Upper Chamber, I encourage her to put her considerable charm and powers of persuasion to the task of allowing television cameras to record the Senate’s proceedings, as they do in the House of Commons. But that’s an issue for another day …
I also noted that, given the chance to take a partisan shot at the Liberals, Conservative Senator David Tkachuk of Saskatchewan — who, I should say, is among the most partisan of Conservative senators and rarely misses a chance to take a shot at a Liberal — was quite reasonable, sympathetic and practical in his response to Senator Fairbairn’s situation, highlighting her good work on agriculture issues but also noting that perhaps the Senate should study some rule changes to deal with senators who, for whatever medical reason, may no longer be able to discharge their duties. I agree: The Senate should use the particulars of Senator Fairbairn’s affliction to address the broader issue of what ought to be done in the event of a competent medical authority declaring a Senator incompetent. But I would caution senators to ensure that whatever rule changes, if any, do not apply retroactively to Senator Fairbairn. It’s her seat until she is, by law, forced to resign at age 75.
So should Senator Fairbairn be forced to resign? Well, there’s no rule that says she has to resign until she reaches the age of 75. And it would make little difference in any event. The Conservatives already have a majority in the Senate and Senator Fairbairn’s vote with her Liberal caucus would have no effect on any legislation moving through the Senate. If she resigned and Prime Minister Stephen Harper appointed a Conservative, they would continue to have a majority. The only realpolitik issue about Senator Fairbairn’s status is to the LIberal caucus as a whole. A senator is allocated a certain amount of funding every year for office staff and for research staff. If Fairbairn resigns, the Liberals lose this money and those resources and that money and resources would surely go to the Conservatives. As the Liberals are the “third party” in the House of Commons, this loss of funding is likely not a trivial matter.
In any event, my thoughts and prayers are with Senator Fairbairn and her family. She has served our country for many years and deserves our thanks, admiration and, if she and her family wish, two more years in the Senate.