‘Slapdash’ case, Duffy defence says

It was, if not the oddest closing submission ever, among the weirdest. Don Bayne, Mike Duffy’s lawyer, spent an entire day Tuesday slagging the prosecutors for their final submissions the day before.

Bayne said the two Crown attorneys, Mark Holmes and Jason Neubauer, “ignored” great swaths of evidence, took “a slapdash approach” to the case, misstated, misrepresented and mischaracterized various parts of the evidence, fell victim to the siren call of common sense, asked the wrong questions and by doing that several times invited presiding Ontario Court Judge Charles Vaillancourt to come up with the wrong answers and “enter into an error of law,” and perhaps most egregiously, did all this in written materials that weren’t neatly full of transcript references and attributions and weren’t nicely indexed and tabbed, as, say, Bayne’s own material was.

It was the adult version of that kid who is in every classroom, who hands in his homework all beautifully footnoted, with a swell cover, and Bayne was as proud of his five-volume materials, noting several times it was all “attributed” and tabbed, and multiple times urging the judge to read it.

But Bayne was serious.

In his view, the prosecutors’ approach — they urged Vaillancourt to ask such simple questions as, “Where did Mike Duffy live?” and “What was the actual purpose of the trip?” in relation to his disputed living and travel claims — reflects a case that should never have got to trial.

There was “vast overcharging” of the Prince Edward Island senator, Bayne said, and among the 31 fraud, breach of trust and bribery charges Duffy faces, there isn’t a single proper charge.

“There’s a tendency ( to convict on one or two) when there’s a multiplicity of counts before the court, a Canadian tendency … but each deserves to end up with a verdict of not guilty, every single one of them.

“… What is really the evidence here?” Bayne raged near the end of the day.

“The only right verdict is not guilty. The man’s been through a tremendous ordeal … few have ever been in his position.”

Behind hi m sat t he 69- year- old veteran former broadcaster, hands folded in his lap, his wife, Heather, and other supporters beside him.

Bayne’s view of his client is that as the expenses scandal became public and swirled around former prime minister Stephen Harper, Duffy was coldly sacrificed by Harper’s henchman in the PMO, forced under duress to agree to repay about $90,000 in allegedly improper expenses and to pretend he was doing it with his own funds, all to stop the beating the government was then taking in Question Period.

Duffy, Bayne said, had done nothing that the Senate’s own generous rules didn’t allow or encourage ( anything short of mere breathing was considered official Senate business and thus any cost to be borne by the taxpayer), whether it was to swan about the country in business class appearing at public events, giving speeches, attending the funerals of local dignitaries, or hiring whomever a senator wanted to hire at whatever rate and to perform whatever service.

As Bayne triumphantly put it once, “Sen. Duffy was not trying to opt out of scrutiny or oversight; there was none!”

This has always been Bayne’s view of the case, but now he could, and did, point to 100-plus exhibits and thousands of pages of transcript from 60 witnesses who testified over the 10 months the trial sat off and on — the predominant theme of which was that yes, the Senate had policy documents and procedures up the yingyang, but none of them really amounted to a hill of beans: The world really was a senator’s oyster.

Why, Duffy may have made some administrative errors, Bayne acknowledged, and his quick skimming of some of the alleged improprieties suggested the lawyer knew his client’s weak spots (for instance, that speech for which Duffy was paid $10,000, but still dinged the taxpayer for the cost of the speech writer), but that was as bad as his conduct got.

“It’s one thing not to like the Senate Administrative Rules,” Bayne said. “Then change them, but don’t criminalize someone for living under them.”

Not only did prosecutors have a “thin- as- gruel” case, and present the judge with nasty- looking briefs, Bayne said, but they relied upon such witnesses as former chief of staff Nigel Wright, who repaid Duffy’s expenses from his personal funds, and others in Harper’s PMO.

In his 44 years of practising criminal law, Bayne said, in the pantheon of witnesses he’s encountered, “I haven’t seen the likes of ( them) in my career.” He reserved his most sneering contempt for Wright, whom he described as “unreliable and untruthful.”

For all his shots at Holmes and Neubauer, Bayne was hardly immune to the florid misstatement himself.

Once, for instance, in advancing the case Duffy only ever played by the non-rules of the Senate, he noted this was “why, on occasion, his spouse travelled with him.”

On occasion? As the “actual evidence,” as Bayne called it, shows, Duffy rarely went out the door of his suburban Ottawa home without Heather at his side, and when he travelled the land, usually so did she, in business class, too, and at public expense.

Presumably, Bayne would argue that the Senate got a good deal there as well.

Vaillancourt has reserved his decision until April 21.