Christie Blatchford,
As he put it in his opening address, ‘Senator Duffy is not to blame if the rules are found lacking’
In the tried-and-true manner of the criminal courts, the Mike Duffy fraud trial is now on an unscheduled break until Monday.
The case was abruptly delayed Wednesday after a long-simmering legal question — how the court should treat an almost-fiveyear-old Senate report — finally came to the fore.
The report in question is the Eleventh Report of the Senate’s Standing Committee on Internal Economy, Budgets and Administration, which in turn dealt with an Ernst & Young audit that unsurprisingly found weak or lax financial controls over senators’ expenses and either badly communicated or poorly understood rules.
This was akin to discovering that the sun rises in the east, but never mind.
Duffy, of course, is pleading not guilty to 31 fraud, breach-of-trust and bribery offences, mostly in relation to his travel and living expenses during the 2009-2012 period.
And his defence — and his lawyer, Don Bayne, has used it repeatedly as a club with Senate staff who have testified here — is that there effectively were no rules, or none anyone took seriously anyway, so Duffy can’t possibly have broken them, let alone in a criminal sense.
The Dec. 15, 2010 report is now what’s called a lettered exhibit at trial, meaning it isn’t officially a proper exhibit and can’t be treated as equally valuable or given the same weight as other evidence. It was introduced by Bayne over the objections of prosecutors, who deem the report both hearsay (in that it comes from a third party, the committee) and opinion (the purportedly expert opinion of Ernst & Young).
Ontario Court Justice Charles Vaillancourt has several times allowed Bayne to use the report in cross-examining witnesses, deferring the decision on how to characterize it. But Wednesday, he agreed “the issue keeps coming back” and that “perhaps this is the time to deal with it.”
The argument reflects the fundamental common-sense versus policy divide between prosecutors and the defence.
Prosecutor Mark Holmes said in his opening statement that Duffy should be judged not on a legalistic interpretation of the dog’s breakfast of Senate rules and policies, but rather on a common-sense reading of the facts — as, for instance, when Duffy applied to work as a senator from P.E.I., while all the time living in the Ottawa suburb of Kanata, and then signed and certified expense form after expense form that he was incurring additional costs, wasn’t he being dishonest and therefore committing a fraud?
Bayne, on the other hand, while not disputing what Duffy did, said that by all the rules and practices of the Senate, his was “normative conduct.” As he put it in his opening address, “Senator Duffy is not to blame if the rules are found lacking” and that it’s not a “book of common sense” by which he should be judged, but by the book of Senate policies.
Bayne was beginning his fifth full day of questioning Nicole Proulx, the Senate’s former chief financial officer during Duffy’s abbreviated term, when prosecutor Jason Neubauer objected again to him continuing to use the committee report. Neubauer asked for a proper evidentiary hearing on the admissibility of the report before the trial moved any further along, and the judge agreed.
Proulx’s evidence has been adjourned until June 1.
The lawyers will present arguments about the report Monday, with the judge likely deferring his decision. Tuesday, prosecutors will resume calling other witnesses, perhaps among them Duffy’s ailing crony, Gerald Donohue.
It was to two Donohue family companies (one, improbably, an insulating concrete forms construction firm) that Duffy directed a good chunk of his annual $150,000 a year office and research budget, purportedly for “writing” and “editorial” services. But the trial has heard that Donohue subcontracted out any such writing assignments, and used the public funds as a “reserve pool” for Duffy to pay volunteers, a makeup artist and a fitness trainer among others.
“Mr. Donohue’s health is a grave concern,” Bayne told the judge. “Every reasonable effort should be made to get him in next week. … He may not be with us (much longer). In the interests of justice and truth, we require his evidence.”
The trial will sit next week, as was previously scheduled, then break until June.
The issue (of the Senate report’s status as evidence) keeps coming back … perhaps this is the time to deal with it. ONTARIO COURT JUSTICE CHARLES VAILLANCOURT