Crown points at Duffy’s duplicity
That there were dark forces at work in the office of former prime minister Stephen Harper, working feverishly behind the scenes to stop the expenses scandal swirling around Sen. Mike Duffy and others doesn’t get the former broadcaster off the hook for his own criminal conduct.
“Yes, the PMO had its own compelling interests” for wanting to put a lid on the scandal, prosecutor Jason Neubauer told Ontario Court Judge Charles Vaillancourt Monday. “But that doesn’t shelter Sen. Duffy.”
Neubauer and f el l ow Crown attorney Mark Holmes were making their closing submissions in the fraud and bribery case that seems to have no end.
Theirs was a brisk pitch to common sense and the ordinary and plain meaning of words and actions, an approach immediately denounced by Don Bayne, Duffy’s lawyer, as “thin and insubstantial.”
Bayne noted that he had prepared more than 260 pages of submissions for the judge, suggested the prosecutors had “simplified and mischaracterized” much of the evidence, then complained they got their material to him only last weekend.
(All that is likely a function of the fact that unlike Bayne, who is quasi- retired and chooses his few clients carefully, the prosecutors have multiple other cases, including murder trials, to manage.)
As Holmes said in written materials prepared for the judge, “These submissions, like the trial itself, highlight the differences in approach” between Bayne and prosecutors. Despite the “detailed examination of policy instruments, the findings of external audits, the media attention and the political implications” of the long trial, he said, this is basically a case about “an employee who exploited his position to claim compensatory payments to which he was not entitled.”
Duffy is pleading not guilty to 31 offences.
Many relate to living in the National Capital Region expenses that are meant to defray legitimate costs for out-of province senators who have to travel to Ottawa, but which Duffy, an Ottawa resident for decades, claimed while continuing to live full-time in his suburban Kanata home.
Other charges are related to travel expenses for trips Duffy billed as Senate business but which the prosecutors say were primarily personal and private.
For instance, there were several business-class flights for Duffy and his wife Heather to British Columbia, where their adult children live and which appeared to involve little, if any, actual work.
A third category involves payments made with funds from Duffy’s office budget, but which were quietly handled through what the Crown calls a “slush fund” run by Duffy crony Gerry Donohue via a couple of his family companies, and which were thus exempt from ordinary Senate scrutiny.
These payments included: fees for speeches, including some Duffy delivered but was also richly paid for privately; two volunteers who had done work for him and never expected to be paid; a fitness trainer Duffy turned on paper into a “consultant” (they purportedly would discuss fitness for seniors as Duffy rode the exercise bike); and at least two explicit workarounds of the Senate rules, once when Duffy had Donohue pay a makeup artist despite being told earlier that wasn’t allowed.
The final category of three charges — bribery, accepting a benefit and breach of trust — relate to Duffy’s accepting $90,000 from former Harper chief of staff Nigel Wright to repay four years’ worth of expenses after they became public and immersed Duffy, and the Red Chamber itself, in scandal.
A hallmark of Duffy’s actions, the prosecutors said, is duplicity in how he portrayed them to officials in the Senate and the Prime Minister’s Office, and in paperwork, and a stubborn aversion, even in his testimony at trial, to ac- cepting a shred of responsibility or blame.
With the “service contract” for the fitness trainer, Holmes said, “the nature of the service is exercise. Labelling it as ‘consulting’ doesn’t affect the nature of it.”
And as for his habit of “pre-signing” expense forms — with the signature, a senator certifies the expenses are legitimate, which he can hardly know if he hasn’t even incurred them yet — Holmes pointed out that even in the witness stand, Duffy “refused to accept that this was a significant and deceptive practice.”
With the bribery charges, Neubauer reminded the judge that it was Duffy who first told Wright he didn’t have the money to repay the expenses and that it was his then- lawyer, Janice Payne, who insisted in negotiations with the PMO that he “must be made whole,” meaning not suffer any financial hardship.
And, Neubauer said, days before he finally agreed to repay the expenses ( with Wright’s personal funds), Duffy “on his own initiative” took out a mortgage on his Kanata home to “provide the facade or the fiction that he was repaying the money himself.”
That’s also how he later characterized the repayment in a TV interview.
And at one point, as Neubauer told the judge, Duffy and Payne “explicitly sought the assurance of the PMO that this matter would not be referred to the RCMP.”
That demand wasn’t accepted, but that he tried to get “removal from RCMP scrutiny” shows his “intent was to thwart any potential investigation of his own criminality.”
Throughout the negotiations with the PMO, Neubauer said, Duffy was an eager participant in scripting the “media lines” that he and others would use in describing the arrangement to repay his expenses.
Alluding to the defence line that Duffy’s free will was overrun by the bullies from the PMO, Neubauer sneered, “That’s not capitulation. That’s Sen. Duffy asserting his power.”
Bayne will make his closing submissions Tuesday, at which point the judge is expected to reserve his decision to an unknown date.