Trial takes a feisty turn
Duffy’s lawyer has little success suggesting top official showed bias
If the Senate, as a muse-friend says, is a well-known game of let’s pretend — the appointments are payoffs for political favours done or about to be done; the alleged contribution to the legislative process pretty much a joke; the work itself a scam — then similarly so is much about the criminal courts.
Judges are accorded a deference a few richly deserve but all are quick to claim. The actual court work day is only marginally more taxing than the actual Senate work day. Generally speaking, the walls of both Red Chamber and courtroom metaphorically drip with horse manure.
In fact, suspended senator Mike Duffy must feel very at home in courtroom 33, where his criminal trial ended its third week here Friday with his lawyer, Don Bayne, launching a sneering attack on the integrity of a senior Senate staffer (and indirectly on prosecutors and police), while the sternest rebuke Ontario Court Justice Charles Vaillancourt could offer was a mild, “Let’s not pick away! Well! Really and truly!” before he called for an earlier-than-usual morning break.
Bayne had just whinged that he didn’t have the highlighted portion of an exhibit prosecutor Jason Neubauer was using.
Bayne long had had the exhibit itself through the usual disclosure process, but, it appeared, now wanted a new version with the highlighted sections.
“Well, that’s not (an issue of ) disclosure,” Neubauer correctly replied. “That’s working through it.”
In other words, get your own crayons, pal.
By this early point in the day, Neubauer’s patience had been well and truly tried.
As he was trying to complete his examination-in-chief of Nicole Proulx, who was the Senate’s chief financial officer at the time Duffy was appointed, Bayne interrupted no fewer than five times with objections (though often, they were warning shots fired to get the judge’s attention) and twice he chirped comments without even getting to his feet.
Bayne’s objection was always the same: Neubauer was trying to solicit Proulx’s opinion and she was only too happy to give it, to which Neubauer effectively replied, nonsense.
In the absence of specific rules dealing with senatorial conduct, he said, there was still the matter of Senate practice and the noabuse philosophy that permeates all its documents.
For instance, Neubauer said, just because there’s no specific rule prohibiting a senator from billing to have the lawn at his house mowed, “Does that mean you can do it? Of course not. That’s absurd.”
That prompted Judge Vaillancourt to say he’d allow him to continue, “but at the end of the day, I hope you have something more on the platter than you do right now.”
Neubauer immediately called him on it. “I hope Your Honour hasn’t made a decision on the facts,” at which point the judge said, “I usually wait until the end.”
That was, of course, greeted with titters of appreciation from the crowd, as though the judge had actually got off a genuine witticism.
Once, with Proulx out of the room, Bayne alerted the judge that he would soon show she was “obviously a very interested witness,” meaning she was biased.
Another time, again with Proulx absent, Bayne told the judge “this witness is such a willing witness to help the prosecution.”
So as he began his cross-examination, he wasted no time.
This, he said, was the first time the two had clamped eyes on one another, wasn’t it? Yes, Proulx said. “Despite my efforts over many months starting in January to meet with you, anywhere, anytime?” Proulx essentially agreed that was so.
Bayne’s point was that where Proulx had met either the RCMP (who investigated Duffy) or prosecutors a grand total of five times over the course of about two years, she had told him she was too busy to meet him and that she had provided “no assistance to the defence in this case” — the suggestion that there was something deeply nefarious about this.
Well, as it turns out that isn’t true, though Bayne didn’t know it.
In the background, Proulx was the one charged with gathering Duffy’s emails and documents for the Senate Law Clerk, who had asked for her help in responding to a defence request. “I actually spent an enormous amount of time providing documents for the defence,” she said.
But more to the point, imagine how it would have looked if, during a serious police investigation of an allegedly crooked senator, senior Senate staff like Proulx had stonewalled investigators, refused to interpret the Byzantine collection of Senate rules and policies, and been anything other than fully co-operative?
How it would have appeared, of course, is that the very institution under fire was protecting its own, this after it arguably had already been caught doing that very thing once in l’affaire Duffy.
Proulx has demonstrated nothing close to bias in her thus-far three days of testimony.
She was, as she pointed out to Bayne, the Senate’s point man — the primary contact to answer the RCMP production order and to search for documents — in the police investigation.
“You did it willingly?” Bayne asked.
“As opposed to?” Proulx replied.
“As opposed to being compelled,” Bayne said. “You didn’t have to meet with the Crowns and police.”
She answered coolly that once she had the go-ahead from the Senate’s powerful internal economy committee to co-operate, she did.
Proulx has a lot of steel in her spine. Beautifully bilingual, she appears to believe deeply in what is her mantra: Senate funds, Senate business. Canadians are lucky to have her in that place, and for that matter, in the courtroom.