SENATORS RESOURCE GUIDE:

Allowances, Entitlements and Administrative Services

LEGAL MATTERS

II. Legal Matters

TABLE OF CONTENTS
1. Introduction ............................................................................................................................. 2
2. Qualifications and Disqualification of a Senator .................................................................... 2
2.1 Qualifications .................................................................................................................... 2
2.2 Grounds for Disqualification ............................................................................................ 3
2.3 Declaration of Qualification ............................................................................................. 3
3. Attendance ............................................................................................................................. 3
4. Use of Senate Resources ......................................................................................................... 4
5. Conflict of Interest .................................................................................................................. 5
6. Legal Services ........................................................................................................................ 7
6.1. Legal Advice .................................................................................................................... 7
6.2. Legislative Drafting Services ........................................................................................... 7
6.3. Legal Representation ....................................................................................................... 7
6.4. Notarial Services .............................................................................................................. 8
7. Legal Assistance and Indemnification ................................................................................... 8

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1. Introduction
The principal ongoing legal requirements for qualification of a senator are:
the senator must reside in his or her home province or territory;
the senator must own land in his or her home province or territory; and
the senator must avoid acquiring or exercising the rights of a foreign citizen;

The principal ongoing legal obligations of office for a senator are:

to attend to the business of the Senate;
to use Senate resources for parliamentary functions; and
to avoid conflicts of interest.

The Senate appoints the Law Clerk and Parliamentary Counsel to assist senators by providing
them with legal services. For more details concerning all matters in this chapter, contact the
Office of the Law Clerk at 613-992-2416.
In appropriate circumstances, the Senate will provide senators with legal representation and
indemnification in relation to the carrying out of their parliamentary functions.

2. Qualifications and Disqualification of a Senator

The Constitution Act, 1867 sets out the constitutional qualifications a person must have to
become a senator and the grounds on which a sitting senator will become disqualified. In
addition to avoiding disqualification, senators must comply with all requirements that govern the
carrying out of their duties of office.

2.1 Qualifications
Eligibility

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In order to be appointed to the Senate of Canada, the Constitution Act, 1867

requires that senators:
(1) be at least 30 years old;
(2) be a Canadian citizen or a subject of the Crown;
(3) own $4 000 worth of land in the province or territory they represent;
(4) have a personal net worth of $4 000;
(5) be resident in the province or territory for which they are appointed; and
(6) in the case of Quebec, hold real property in the electoral division for
which they are appointed or be a resident in that electoral division.

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LEGAL MATTERS

2.2 Grounds for Disqualification

Loss of seat

The Constitution Act, 1867 also provides that the seat of a senator shall become
vacant if the senator:
(1) fails to attend for two consecutive sessions of Parliament;
(2) takes an oath of allegiance to a foreign power, or becomes a subject or
citizen of a foreign power;
(3) becomes bankrupt or insolvent;
(4) is attainted of treason or convicted of a felony or an infamous crime; or
(5) ceases to be qualified in respect of property or of residence.

2.3 Declaration of Qualification

Declaration

Senators are required to sign a Declaration of Qualification upon their

appointment to the Senate. Senators are also required to renew their
Declaration of Qualification within the first 20 sitting days of the first session
of each new Parliament.

3. Attendance
Attendance of
senators

Senators are commanded to attend to the Senate when it is in session for the
purposes of advising and assisting in the affairs of Canada. Their daily
attendance to Senate sittings is recorded by officials and is published in the
Journals of the Senate, as it has been since Confederation. This practice
publicly documents the compliance of each senator with the attendance
requirements set out in the Constitution Act, 1867.

Senators
Attendance
Register

Attendance records are also maintained by the Office of the Clerk of the Senate
for the purposes of the Senators Attendance Policy. This satisfies the
requirement of the Parliament of Canada Act that each senator furnish a signed
monthly statement of attendance for the purposes of remuneration. The
Senators Attendance Register is a public document kept in the Communications
Directorate, where it is available to the general public. High and low
attendance records are often considered newsworthy by the media.

At the end of every month, senators are sent a copy of a statement of attendance
detailing their:
attendance to business as defined in the Senators Attendance
Policy (which includes attendance in the Chamber and attendance to
official business);
attendance at committee meetings;
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LEGAL MATTERS

days on which public business is carried out; and

days of unavoidable absence due to illness for that month.

Attendance at a committee meeting outside the National Capital Region on a

day the Senate is sitting is considered attendance to business.

Information for the monthly statement of attendance is gathered from:

attendance taken in the Senate Chamber each sitting day;
information provided by the Committees and International and
Interparliamentary Affairs Directorates; and
written notices from senators indicating public and official business
and unavoidable absence due to illness.

A medical certificate is required for an illness which lasts more than six
consecutive sitting days. In the event of the need for a second or subsequent
medical certificate, the medical doctor is designated by the Clerk.
Senators are granted 21 personal leave days per session.
For every day in a session where a senator does not attend the business of the
Senate for a reason other than illness, official business or public business, a
personal leave day is deducted. The monthly statement of attendance will then
be adjusted to indicate the number of 21 personal leave days remaining.

Senators are required to sign and return the monthly statement of attendance to
the Clerks Office within two weeks of the day it is issued.
Deductions

A deduction at the rate of $250 per day is made from a senators sessional
allowance for each day beyond 21 days in a session in which the senator does
not attend the business of the Senate for reasons other than illness, official
business or public business.

4. Use of Senate Resources

Resources

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The Senate provides senators with the resources they need to carry out their
parliamentary functions. These include an office, standard office furnishing as
defined in the scales of entitlement and an office and research budget with
which to purchase additional office equipment and cause the Administration to
retain staff for the senator.

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Senate
Administrative
Rules

The Senate Administrative Rules govern senators in their use of Senate

resources. A basic principle expressed in the Rules is that Senate resources are
to be used by senators for the carrying out of their parliamentary functions and
not for other purposes.

Parliamentary
functions

Parliamentary functions are defined in the Senate Administrative Rules as duties

and activities related to the position of a senator, wherever performed, including
public and official business and partisan matters, but excluding activities related
to the election of a member of the House of Commons or the private business
interests of a senator.

Partisan
matters

Senate resources may not be used for partisan matters that are nonparliamentary in nature such as nomination campaigns and election campaigns.

Interpretation,
application,
exceptions and
ratification

The Senate Administrative Rules provide that senators may apply to the Internal
Economy Committee in writing for direction on the interpretation or application
of the Rules to a particular fact situation, for direction on a matter not covered
by a rule, for an exception to the application of a rule or of a policy in an
individual case, or for ratification of an action.

5. Conflict of Interest
Conflict of
Interest Code
for Senators

Avoiding conflict of interest and apparent conflict of interest has important

legal, procedural and political dimensions for senators.
In 2005, the Senate adopted the Conflict of Interest Code for Senators. The
Code is designed to enhance public confidence in the Senate, provide for greater
certainty on issues of real or apparent conflict of interest and establish clear
standards and a transparent system to address questions relating to proper
conduct.
The Code establishes principles for service in Parliament as a public trust. It
precludes senators from using their position, influence or access to confidential
information to further their private interests or the private interests of others.
Senators may only accept gifts that could reasonably be considered to relate to
their position as permitted by the Code, and must declare them as required.

The Code contains disclosure requirements that govern a senators right to

participate in debate in the Chamber and committee, and prohibits a senator who
has reasonable grounds to believe that he or she, or a family member, has a
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private interest in a matter before the Senate or a committee of which the

senator is a member from voting on the matter.
The Senate Ethics Officer is an independent, non-partisan adviser appointed
under the provisions of the Parliament of Canada Act, to assist the Senate, the
Standing Committee on Conflict of Interest for Senators and individual senators
in carrying out the provisions of the Code. Under the general direction of the
Committee, the Senate Ethics Officer provides advice to senators and conducts
inquiries and investigations into whether a senator has complied with the
provisions of the Code.
Senators are required to file an annual confidential disclosure statement with the
Senate Ethics Officer. New senators must file their first statement within 120
days after being summoned. Based upon the confidential disclosure statement,
the Senate Ethics Officer prepares a public disclosure summary that is placed on
file for public inspection.
Conflict of
Interest Code
(staff)

Employees and staff of the Senate, including those on the staff of senators, are
bound by the Conflict of Interest Code for Persons Employed by the Senate.
The purpose of this Code is to enhance the confidence of the public and of
senators in the integrity, honesty and impartiality of the staff of the Senate, and
to enable staff to meet the expectations of the Senate by defining the
requirements. The Code governs conflicts of interest and apparent conflicts of
interest and requires staff members to arrange their affairs so as to minimize the
possibility of a conflict of interest or an apparent conflict of interest arising
between that persons duties to the Senate or to a senator and the staff members
private interests.
Employees receive a copy of the Code at the time that they commence their
employment.

Related legal
requirements

In addition to the Conflict of Interest Code for Senators, the law imposes on
senators a number of prohibitions designed to protect the public interest by
preventing conflict of interest and corruption.
For example, subsection 31(2) of the Constitution Act, 1867 prohibits any act of
foreign allegiance. Section 16 of the Parliament of Canada Act prohibits
external compensation for services rendered as a senator. Section 119 of the
Criminal Code of Canada prohibits bribery, and sections 121 and 122 of the
Criminal Code prohibit influence peddling and fraud and breach of trust of
office, respectively.

Related
procedural
requirements

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In addition to the rules set out in the Conflict of Interest Code for Senators, there
are two procedural rules in the Rules of the Senate that govern a senators
participation in Senate proceedings. Rule 65(4) provides that senators may not
vote on any question in which they have a pecuniary interest not available to the
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general public. Rule 94(1) provides that senators may not sit on a committee
considering a matter in which they have a pecuniary interest not held in
common with all Canadians.

6. Legal Services
The Law Clerk and Parliamentary Counsel is an officer of the Senate appointed by resolution of
the House. The Law Clerks mandate is to provide independent, non-partisan legal services to
senators, to assist them in carrying out their parliamentary functions. The Law Clerks mandate
does not extend to providing legal services for personal matters but the Office will be pleased to
assist a senator who requests help in selecting outside counsel. The Law Clerk provides legal
services to individual senators confidentially, on a solicitor-client basis. The Law Clerk is
assisted by two additional in-house counsel and three support staff. The Office provides the
following legal services:

6.1. Legal Advice

Legal advice

Counsel provide legal advice to senators on questions of law. Questions

might concern the privileges, immunities and powers of the Senate or of
individual senators, or other parliamentary or constitutional matters. Counsel
advise senators on the interpretation of legislation and of bills before the
Senate. Counsel also serve as in-house corporate counsel to the Internal
Economy Committee and to the Senate Administration.

6.2. Legislative Drafting Services

Legislative
drafting
services

Counsel draft amendments and private members bills for senators. Legislative
drafting is a specialized skill and amendments and bills for use in the Senate
and its committees should ordinarily be drafted or at least reviewed by Office
counsel before being used. Because requests for legislative drafting services
are often made at peak periods, senators and their staff are asked to plan to
provide the Office with as much lead time as possible.

6.3. Legal Representation

Legal
representation

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Office counsel may only represent individual senators when authorized to do

so by the Senate or the Internal Economy Committee. Legal representation
for individual senators is usually provided under the authority of the Senate
Legal Assistance and Indemnification Policy, in which case outside counsel is
usually retained.

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6.4. Notarial Services

Notarial
services

Notarial services for senators include the taking of affidavits and the providing
of certified true copies. These services are provided as a convenience to
senators and may be for personal matters as well as matters related to the
senators parliamentary functions. These services are intended for senators;
persons from outside the Senate should consult a law firm.

7. Legal Assistance and Indemnification

Legal
assistance and
indemnification

The Senate protects senators and employees by providing them with assistance
for their representation or defence before courts or other bodies and with
indemnification from personal civil liability in eligible circumstances and
where appropriate. Legal assistance and indemnification are provided subject
to the requirements and procedures established in the Senate Legal Assistance
and Indemnification Policy.

Senators may apply to the Internal Economy Committee or, to protect

confidentiality where the matter concerns the Conflict of Interest Code for
Senators, to the Standing Committee on Conflict of Interest. Employees may
apply to the Clerk of the Senate.

Legal
assistance

Generally speaking, senators and employees are eligible for legal assistance,
subject to limits, where the senator or employee is required to appear before a
court or other body in relation to a suit, charge, inquest or inquiry that has
been instituted by others, the matter is one that relates to the parliamentary
functions of a senator or the carrying out of the employees duties or functions
in relation to the Senate, and the particulars of the case are such that it is
appropriate for the Senate to assist.
Legal assistance may be provided by in-house or outside counsel. Financial
limits apply.
If the matter is resolved against the senator or employee, the applicant is
required to reimburse the Senate.

Indemnification

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Indemnification from personal civil liability may include the payment of

settlements, civil fines and judgments. To be eligible for indemnification, the
senator or employee must have incurred the liability while carrying out his or
her parliamentary functions or duties. In addition, the senator or employee
must have acted honestly and without malice, must have provided the Senate
with the opportunity to defend the case and not have compromised its defence
and the particulars of the case must be such that it is appropriate for the Senate
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to indemnify the senator or employee.

The Senate will not pay any fines or costs arising out of a criminal conviction.

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