The case for the exhibit in evidence

It is a measure of the madness that is the Canadian courts that Mike Duffy’s lawyer has thus far spent in excess of five hours telling a judge why an already public Senate report is good enough to be a trial exhibit.

And Don Bayne isn’t finished yet.

The report he wants admitted as a full exhibit — meaning it would have the weight of other evidence, such as testimony — is the Eleventh Report of the Standing Committee on Internal Economy, Budgets and Administration, which is the Senate’s powerful executive committee.

The report is dated Dec. 15, 2010 and is available, with a bit of effort, on the Senate website.

It consists of lengthy excerpts from findings of the Ernst & Young firm — whose auditors found flawed or non-existent policies on senators’ expenses and the like, with predictable “risks” that some would file for things they shouldn’t — with the committee adding its responses to various recommendations and much talk of “action plans.”

Worth noting is that of the two most critical Ernst & Young recommendations — that the Senate better define “parliamentary functions,” so senators would know which partisan activities could be charged to the taxpayer and which shouldn’t be, and that there be a “second level” of oversight added to the system — appeared to fall on deaf ears.

The committee disagreed that a second level of scrutiny was necessary — amusingly, it cited the Senate’s already “rigorous” oversight on expense claims — and remained curiously silent on the need to redefine “parliamentary functions.”

Duffy, of course, is pleading not guilty to 31 counts of bribery, fraud and breach of trust, the latter two mostly related to his various living and travel expenses, and his defence is that in the chaos of confusing and vague Senate rules and policies, it was impossible to know what was permitted and what wasn’t.

As Bayne put it once Monday, “The state of those rules … and whether they were breached is highly relevant.”

The committee report, falling as it did within the key years of Duffy’s Senate active service, would boost the defence contention that if the former broadcaster did anything wrong at all, he can hardly be blamed for not figuring out the chaos.

Bayne repeatedly said of the committee report, “This is not the Ernst & Young report” (though huge swaths of it appear to be lifted holus-bolus from it) and told Ontario Court Justice Charles Vaillancourt “the only real unfairness would be if the defence is precluded” from using it.

But it doesn’t appear the report would get the 68-year-old suspended senator off the hook for signing forms claiming he incurred additional expenses while living in his long-owned home in the Ottawa area.

Prosecutors Mark Holmes and Jason Neubauer object to the report becoming a regular exhibit, saying it is both hearsay (from the committee) and opinion (the expert opinion of Ernst & Young).

They will get their opportunity to persuade the judge Tuesday, should Bayne finish.

At the moment, the report is but a lettered exhibit, a meaningless distinction for the layman, but one of great moment for lawyers and the judge.

In fact, the entire discussion is a classic of its kind, in that the judge who will make the decision, and presumably disabuse himself of the knowledge of the very report should he decide it should not go in as a proper exhibit, is hearing about it in all its gory detail.

Judges do this all the time, of course — hear the very evidence whose admissibility they subsequently rule on and may in fact kick out — and are presumed to be able to set the whole kit and caboodle out of their minds because they are judges.

It made for a day that was very exciting for lawyers, but dry as dust, if not vein-opening, for ordinary mortals.

In his quest to convince Judge Vaillancourt of the correctness of his position, Bayne went over evidence already heard in meticulous detail and cited cases obscure and wellknown, from the Supreme Court of Canada and the Ontario Court of Appeal to one involving a New York “collector of customs” and a bill of lading to a 1785 English case and a 1953 case involving a murder in Thunder Bay.

In the process, he managed to praise the judge — “But you are an extremely experienced trial judge,” Bayne said at one point, and at another said, “I’m a big believer in residual discretion and in judges’ wisdom” — all of which is also standard court fare.

As soon as prosecutors make their argument, they expect to start calling actual witnesses again.