Duffy is free, but’s he’s far from clear
So it was all a dream. Mike Duffy didn’t charge the taxpayers thousands of dollars for personal trips all over the country, with a fig leaf of Senate business thrown in. He didn’t expense a personal trainer as a “consultant” or charge the public for an “emergency” makeup artist or funnel $65,000 of public funds through a friend’s shell companies to avoid even the kind of scrutiny that let everything else he was doing pass. He didn’t claim travel expenses for the house in Ottawa he had been living in for decades and he didn’t secretly take $90,000 from the prime minister’s chief of staff to keep quiet about it all, or rather to lie about it all. He has been, as a Globe and Mail headline screamed, “vindicated.” Well no. All of these things happened, and more. All that has changed is that a judge has decided that there was not proof beyond a reasonable doubt that any of them were crimes, or at least that there was not proof beyond a reasonable doubt that Duffy intended to commit any crimes. That’s perhaps as it should be. That the judge, on the way to this verdict, gave Duffy every possible benefit of the doubt — that he was greatly assisted in this effort by a Crown case that at every turn declined to call evidence to contradict Duffy’s testimony, on the not unreasonable supposition that Duffy’s testimony was sufficiently contradictory in itself — is immaterial. The burden of proof in all such cases is on the Crown, and the Crown in this case failed to discharge that burden. But just as we should not convict someone of a crime merely because we suspect that he did something wrong, neither should we make the opposite mistake: of supposing that because the evidence did not support a criminal conviction, nothing happened and nobody did anything wrong.
Duffy’s defence, after all, was not so much that he did not break any rules, as that there were no rules to break — or that they were unclear, or that they were not properly explained to him, or when all else failed that everybody else did it. That is more an indictment of the Senate than it is exoneration of him. If there were no rules to prohibit what Duffy was up to, there should have been, and if the senator’s sense of what is appropriate personal conduct is “anything that is not expressly forbidden” then he is entitled to stay out of jail, and he is entitled to his expenses, and he is even entitled to sit in the Senate. The one thing he is not entitled to is vindication.
People in public life are forever trying to persuade us to accept “not criminal” as the required standard of behaviour. Yet it is in public life, above all, that we must not accept it. As our employees, they should at least be expected to live up to the standard we expect of each other, which is not merely to obey the law but to obey certain basic ethical norms — common sense, if not common decency. As our leaders, what is more, they should surely be expected to exceed those standards: to set an example of what is right, not what is blindingly, obviously wrong.
That not only the rules but the culture of the Senate tolerated the sort of abuse of public trust in which Duffy engaged, that indeed other senators were guilty of much the same, is not accidental. It is in part a matter of selfselection, in a body whose chief qualification for appointment has hitherto been a willingness to accept one. But whatever sense of entitlement may have been there initially is surely reinforced by the experience of having been appointed for life, without being accountable to anyone. Of which the most certain proof was the statement from the Senate, after the verdict was announced, welcoming Duffy back to his seat, at full pay. For indeed the only actual job requirement of a senator, besides showing up, is that he not be a criminal.
Duffy has been acquitted: that much is fact. It is probable that he should have been acquitted. Possibly he should never even have been charged. That does not oblige us to accept every line of the judge’s reasoning, however, particularly in the matter of the $ 90,000 cheque from Nigel Wright. The notion that Duffy was some unwilling victim of a plot to force him to accept being “made whole” for his expenses is not only contrary to common sense — the only price he faced for not taking the money was that he would not get the money — but to the evidentiary record. It was an explicit and repeated demand of his lawyer.
Indeed, in all of his dealings with the cunning masterminds in the prime minister’s office whose ma- chinations the judge decries at some length, Duffy would appear to have been in much more the position of dictating terms than the contrary. Everything that went on — the payment of the $90,000, the public pretence that Duffy had paid back the money out of his own funds, the rewriting of the Senate committee report, the attempted tampering with an independent audit — was directed toward making him look good, even if it was their own hides they were trying to save. Duffy may have sincerely believed he did nothing wrong, and that may have made him unwilling to admit he had. But there is nothing in the record to indicate that he was averse to taking the cheque.
That does not for one second mean the others were not richly deserving of the judge’s scorn: if their misdeeds do not excuse Duffy’s, neither should his excuse theirs. The two are in fact of a piece: It was the same culture of expediency that tried to simultaneously scapegoat, pay off and cover up for Duffy that was responsible for his having been appointed in the first place, with a mandate to travel the country at public expense raising funds for the Conservative party. Moreover, while the Conservatives may be said to have paid the price at the ballot box, that does not begin to answer all the questions raised by this affair, from what Stephen Harper knew when to where the ethics commissioners were to why no one other than Duffy was charged.
And in the end we are left with the same dilemma as when we started. A sitting legislator was paid a large sum of money under the table by the prime minister’s chief of staff to collaborate in deceiving the public about a matter embarrassing to the government, a matter that was then being investigated by the legislature. If that is not illegal, it bloody well should be.
THEY SHOULD AT LEAST BE EXPECTED TO LIVE UP TO THE STANDARD WE EXPECT OF EACH OTHER.