Contentious report brings Duffy trial to standstill
Mike Duffy’s criminal trial took an abrupt pause Wednesday, frozen by a dispute over just what the court will do with a Senate report about the weaknesses of its own rules.
The report, from 2010, is important to Duffy’s defence against 31 charges of fraud, breach of trust and bribery, since it suggests the Senate’s rules on how senators spent money were confusing, hard to follow and poorly enforced.
Nobody disputes that the report exists and was the result of a lot of work; the question is how much weight it should get.
The Crown prosecutors argue it amounts to the opinions of outside auditors the Senate hired from Ernst & Young, and although people in the Senate read it and acted on it, the report’s findings themselves shouldn’t be treated as facts.
The Crown’s Jason Neubauer pointed to an Ontario Court of Appeal ruling warning that “expert evidence has the real potential to swallow whole the fact-finding function of the court.” In other words, it’s up to Judge Charles Vaillancourt, not an outside auditor, to assess how sloppy the Senate was and how Duffy behaved as a senator.
Duffy’s defence lawyer, Donald Bayne, wants it treated as evidence on a par with a witness’s testimony under oath — “for the truth of its contents,” in legal terms. The Senate’s committee on internal economy adopted the report and presented it to the full Senate, which did the same, he argues, and that gives it status beyond the opinions of the auditors who prepared it.
It’s come up several times in the trial so far, as Bayne has questioned people who work at the Senate about what the report meant. Human resources officer Sonia Makhlouf, for instance, had to deal with the auditors’ findings that contractors’ personnel files frequently didn’t include their resumés and that they often started work before anybody did the right paperwork for them — an indication that maybe Duffy’s contracting practices, which Bayne admits were poor, weren’t that far out of line.
Crown prosecutors have objected and Vaillancourt has noted the complaints as things to deal with later. Since there’s no jury in this case, he’s allowed the freedom to hear iffy evidence and decide later just how much weight he’s going to give it.
But as Bayne prepared to bring the Senate report into his cross-examination of top Senate finance official Nicole Proulx Wednesday morning, Neubauer got up to say it’s gone too far. The report, he said, is an outsider’s opinion that is inadmissible by default. If Bayne wants to bring it into the trial, he has to show why it’s needed and why it’s OK for Vaillancourt to rely on it.
Neubauer asked for what’s called a “voir dire,” a mini-hearing within Duffy’s trial during which Bayne will make formal arguments, citing case law and everything, and the Crown will respond.
The time has come, Vaillancourt agreed.
“This issue just keeps on going around and around and coming back,” the judge said. “I had hope, from an efficiency point of view, of dealing with the matter later on. However, I am beginning to realize that any efficiencies that I’m gaining by that approach are being lost by the time that’s being taken rearguing this one topic over and over again. And instead of having to endure the exercise on an ongoing basis, perhaps this is the time to deal with the voir dire and then we will not have to have any doubts as to what I view as these exhibits’ being inadmissible or admissible.”
He’d been trying to “weave on through,” he added. “That is not going to work.”
Bayne, who’d anticipated this was coming eventually, said he could be ready to go in an hour. Neubauer’s fellow Crown prosecutor on the case, Mark Holmes, said the prosecutors are officially entitled to see the outline of Bayne’s argument first and have 15 days to prepare their response. In this case, if Bayne could get them his materials by lunchtime Wednesday, they’d commit to being ready by Monday.
Fair enough, Vaillancourt said. He will hear the arguments Monday but won’t deliver a decision until after a planned break in the trial that’s coming at the end of next week. Proulx, who’s been subject to gruelling interrogation by Bayne over the last couple of days, will have her testimony on hold until the court sits again June 1. Tuesday through Friday, the Crown will bring in other witnesses.
Those might include Gerald Donohue, an old Duffy friend who’s alleged to have received $65,000 in bogus contracts out of Duffy’s Senate office budget, as part of a scheme to create a slush fund Duffy could spend without any oversight.