THE DUFFY DECISION
Decision will shape view of Senate and understanding of public trust, experts say
Disgraced senator’s fate on fraud, breach of trust and bribery charges will be revealed today,
OTTAWA— The day former senator Raymond Lavigne was sentenced for filing $10,000 worth of fraudulent expense claims Sen. Mike Duffy noted the disgraced Liberal’s fate in his diary: “6 months in jail; 6 months house arrest.” It was June 2011. Duffy will learn his fate today when Judge Charles Vaillancourt delivers verdicts on 31 charges of fraud, breach of trust and bribery that R CM Plaid against the broadcaster-turned-senator.
Yet it isn’t just Duffy’s professional and personal futures that hang in the balance.
Whatever the judge rules, legal experts say the Duffy case — never mind the intense coverage of the case and its role in shaping a federal electoral result — has already influenced public expectations of the Senate and will soon shape legal understanding of what exactly the public trust means for public officials claiming to respect it.
“I think it has precedential value for sure,” said former House of Commons law clerk Rob Walsh. “Parliament doesn’t get caught up in the courts that often, so where it happens it has an impact.”
Retired judge James Fontana, who until recently was Vaillancourt’s judicial colleague, said no matter which way it goes, the decision will carry “weight and influence.”
“It may get the powers-that-be, and I think they already have, to clarify and clean up the rules governing Senate expenses, and maybe have the controllers of the purse keeping a bit better eye on things,” Fontana said in an interview.
Fontana said arguments that rules are unclear, or other senators equally mismanaged expense claims — as revealed by last year’s auditor general report into the Senate — may have little or no influence on the outcome: “It’s like the fellow travelling down the (Hwy.) 417 and they’re all speed- ing and he’s number three and they nab him.”
Either way, Fontana and Walsh said the decision will guide our view of the standard of behaviour expected of public officials.
“That decision in itself will stand as a clarification, a confirmation and a guideline of what the situation is going to be in the future,” Fontana said.
“It can get vague as to what constitutes a breach of the public trust,” says Walsh.
“What does it mean for, in this case, a senator? Did he use his office in some way that is contrary to the public interest? Well, spending money in ways for which it was not given to him may not . . . include a fraudulent action on his part but may in the judge’s mind constitute an abuse of his position and in that sense be a breach of trust.”
Duffy’s lawyer, Donald Bayne, has said his client is innocent of criminal charges.
Walsh said conviction on any of the fraud charges facing Duffy will send a clear message to parliamentarians “that you’re not beyond the law when it comes to using public funds and you have to be careful.” An acquittal on all charges could have the opposite impact, says Walsh. “It might be there would be a sense of immunity from successive prosecutions.”
Walsh said the judge will have to separate and resolve the legal issues that may be clouded by the larger political context. “They are not always easily separated. The politics is there. The judge can, hopefully more in a more disciplined manner, more easily discern where the politics leaves off and the law takes over.”
The decision may also have implications for other cases, including former Conservative Sen. Patrick Brazeau and retired Liberal senator Mac Harb, and any others still under RCMP scrutiny.
“It does have broad implications one way or other, but I don’t think anyone is sure which way it will have implications and to what extent,” said Fontana.
For Duffy the stakes are more obvious and immediate.
Only acquittal on all counts would allow Duffy to take up his Senate seat again right away. Conviction on any charges would mean Duffy would remain suspended with pay until a sentence hearing. At that point, any sentence other than a discharge would see him immediately suspended without pay until all appeals are resolved.
Duffy, who joined the Senate in January 2009 but was suspended during the last session of Parliament after the Mounties charged him, hasn’t yet fully qualified for a Senate pension.
Conviction on the more serious fraud counts carries a heavy maximum jail penalty, up to 14 years.
The Crown says Duffy fraudulently claimed more than $90,000 in living expenses, paid by the Senate, in designating a P.E.I. cottage as his “primary residence” and his longtime Ottawa home as a “secondary residence.”
Other charges state Duffy fraudulently spent $65,000 in Senate funds for consulting contracts routed through a friend’s company for services explicitly barred by Senate rules, or which were for his own benefit, not Senate business. Duffy is separately alleged to have billed thousands of dollars in travel for personal or partisan political benefit, such as funerals or fundraisers, contrary to Senate rules.
Finally, Duffy is charged with bribery, breach of trust and fraud on the government in connection to what the Crown says was his deliberate attempt to solicit and accept a benefit or bribe — $90,172 from the former chief of staff to Stephen Harper, Nigel Wright — to repay the Senate for what were deemed inappropriately claimed housing expenses.
The sensational case was heard in what’s generally called a lower provincial trial court — the Ontario Court of Justice, which hears about 95 per cent of criminal cases in Ontario. But the experts say the rarity of such a case and the deep dive into the evidence, the Senate rules and the law means this decision will make history.