Privilege takes centre stage
OTTAWA — There’s little question that the Senate, as lawyer Peter Doody put it, “lifted the curtain” and made available documents it wanted police and the courts to have about suspended P.E.I. Sen. Mike Duffy — that is, the damaging ones — while keeping the drapes drawn tight on a report that could be useful in his defence.
“All other reports, negative to Mr. Duffy’s interests, have been disclosed,” Doody told Ontario court Judge Charles Vaillancourt on Thursday as the Duffy criminal trial took a back seat to legal arguments about parliamentary privilege, the shield lawyers for the Senate are using to try to keep under wraps the report that may be potentially helpful to Duffy.
For instance, Doody said, all seven versions of an internal economy subcommittee report on Duffy’s “living allowance” claims were cheerfully produced for the RCMP after the Senate referred Duffy’s case to police in late May 2013.
But not so the internal audit, which found little clarity to Senate rules around what constituted a primary residence and which thus might give Duffy more cover as he defends himself on 31 charges of fraud, breach of trust and bribery.
The issue now before Vaillancourt is whether the Senate has the right to pick and choose when and where it asserts parliamentary privilege.
The Senate, through lawyer Max Faille, says of course it has that discretion — “exclusive authority about whether and when to assert privilege.”
Nonsense, say Doody and Peter Jacobsen, lawyer for a media group (which includes Postmedia News) and Canadian Journalists for Free Expression which have intervener status in the argument: if the core purpose of privilege is to free up speech in the House of Commons and the Senate (it does this by immunizing parliamentarians from defamation and libel suits for what they say in both chambers) how can it also be used to prevent information from coming forward?
Doody made the case that the internal audit done in 2012 about the “primary residence” question isn’t protected and should be released, while Jacobsen warned that keeping it secret would be damaging to the public interest and “will have the effect of dramatically reducing the amount of information that is made public … Parliamentary privilege is about openness and freedom of speech, not secrecy.”
As a senator from Prince Edward Island, Duffy declared his primary residence was his then-unwinterized cottage on the island, though in fact it was well known the former broadcaster had lived and worked in Ottawa for four decades.
The declaration meant, theoretically, that while he was at home in Ottawa, he was on travel status and was eligible to claim per diem living expenses, which he did eagerly — starting from the very day after he learned of his appointment in late 2008.
Now, as the federal auditor general’s report released this week makes clear, Duffy was hardly alone in doing this.
The auditor referred nine other senators to the RCMP for investigation either because they claimed living expenses for effectively pretending they also didn’t live in Ottawa when they did, or because they couldn’t show their expenses had been incurred for parliamentary business.
In fact, Duffy’s defence, as laid out by his trial lawyer, Don Bayne, is just that.
In the absence of clear rules and policies, Bayne says, Duffy can hardly be faulted for breaching what didn’t exist, let alone charged criminally — and besides, Bayne says, lots of other senators were also doing it, so why pick on Duffy?
The mysterious internal audit, done by the then-Senate director of internal audit Jill Anne Joseph, at least according to what she told the RCMP about it, found the same lack of clarity around what was or wasn’t a primary residence.
But, the Senate lawyer said Thursday as he began speaking, Doody and Jacobsen are interpreting privilege too narrowly by focusing on the protection it gives parliamentarians from lawsuits.
Looking at Vaillancourt, Faille said: “The notes I see you taking assiduously are privileged, your honour … the executive (of government) and parliament can’t order you to produce them.” And just as in journalism and medicine and the law privilege is recognized, so too in parliament is there a place for confidentiality and “a role for some matters to be protected …”
Joseph’s report, Faille said, was prepared and presented as part of a parliamentary proceeding. And just because the Senate handed over some similar reports to the RCMP doesn’t mean it must hand over all of them, he said, pointing out that “parliament and the courts may inquire upon the same matters in parallel and it doesn’t mean parliamentary privilege ceases to exist.”
The real purpose of parliamentary privilege, Faille said, isn’t to protect MPs and senators from criminal liability and lawsuits, “but to acknowledge, guard and implement the separation between the branches of government,” the executive and the judiciary.
Faille will complete his argument Friday.