What do we make of Senator Fairbairn?

- August 28th, 2012

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.

Categories: Politics

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6 comments

  1. pmlauzon says:

    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 competent.”

    HERE YOU MEANT Incompetent TYPOS I LOVE TYPOS

  2. David Akin says:

    Thanks @PMLauzon — fixed!

  3. pmlauzon says:

    I AGREE WHOLEHEARTELY WITH YOUR LAST PARA….

    •The Senator fails to show up for work in the Senate for two consecutive sessions of Parliament.
    THAT WILL BRING HER TO 2014….if she shows up a few time …..all of this will be “une tempete dans un verre d’eau” the Senate and this gov. has much more partisant things to think about….

    let Senator Fairbairn retire as she please…
    I always like Sen F.

  4. Paul O says:

    So there’s no requirement that a Senator be alive? As long as someone rolls your bones into the Red Chamber from time to time, there’s no problem?

    Nonsense!

    Fairbairn had the opportunity to maintain her dignity by resigning from the Senate upon being diagnosed as incompetent. Yet now I’m not sure which is more troubling: that she did not, or that media would defend one diagnosed as mentally incompetent as appropriate for carrying out their role in the Senate.

  5. Joseph says:

    There is a couple of points that need to be recognized.
    First, has the senator actually been performing her duties, or has any of them been done by a designate. Point being is that the caucus does not have the authority to appoint anyone to the senate. By giving these duties to someone other than senator, it does call into question who is actually sitting in the senate. A point of course that can be disputed, but something that needs consideration.
    Second, if the senators vote was done as a matter of caucus solidarity, this goes against the mandate of the red chamber as it’s members are to provide sober second thought. The suggestion that the expectation is she would vote party lines, would also suggest that the senators don’t require mental competence to perform their duties. If this is the case, then let the voters decide who should sit in that chamber.
    Thirdly, it is completely plausible that political considerations where at work to insure the senator retains her seat.
    Lastly, for Warren Kinsella to lecture others on decorum is the height of hypocracy.

  6. R. Mowat says:

    Should she be “forced” to resign? No. You’ve outlined the legalities of this clearly.

    Still, if her prognosis is as poor as has been reported, she should resign and allow a new representative to represent her province and its people. That she delayed making such a decision until it is not, apparently, too late to make is a dishonourable and pitiable blemish on what might otherwise have been a distinguished Senatorial career, and similarly upon those colleagues of hers who may have encouraged her to stay.

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