Novak knew about payment, trial told
Lawyer’s testimony contradicts Tory spokesman and Wright
The prime minister’s right-hand man said it matter-of-factly. “Sen. Duffy is going to go ahead and pay that money because it’s coming out of my pocket.”
The speaker was Nigel Wright, at the time Prime Minister Stephen Harper’s chief of staff. The testimony about what he said came in court Thursday from Harper’s one-time inhouse lawyer, Ben Perrin, describing in vivid detail how he heard for the first time that Wright was picking up Mike Duffy’s $90,000 expense tab.
“I was quite surprised,” testified Perrin. “He had never discussed it with me or consulted with me in any way.”
It was March 22, 2013, said Perrin, and the Senate spending scandal was causing political embarrassment for Harper, his inner circle and the Conservative party.
Perrin testified that Harper’s then-principal secretary and closest, longest-serving adviser, Ray Novak, came in the room and was told twice about Wright’s payment plan, first just before and then during a telephone conference call with Duffy’s lawyer. “I looked to my right to see Mr. Novak’s reaction and he didn’t have any reaction,” Perrin told the court.
But Perrin described in detail the call placed to lawyer Janice Payne.
“I arrived at Mr. Wright’s office three or four minutes before that call was supposed to start,” he told the court. “I took a seat at his boardroom table. I remember it very vividly because there were relatively few occasions when I met with him in his office.
“He came over and sat across from me and I gave him a short briefing on how the call was likely to go. Ray Novak entered Mr. Wright’s office and took a seat ... at the head of the table.”
The call began. Wright introduced himself, Novak and Perrin before telling Payne that he was going to personally cover Duffy’s expenses but tell the Canadian public that it was Duffy himself who was paying.
At the time of the call, Duffy was balking at repayment and wanted to have external auditors hear his expenses case. According to Perrin, Wright told Payne that the chances of auditors siding with Duffy were “nil.”
Then Wright told Payne he would be paying the money and, “without skipping a beat,” they discussed how the funds would be transferred, Perrin said.
Perrin told Crown prosecutor Jason Neubauer that there was no further discussion of Duffy’s reluctance to go along with the agreement orchestrated by the prime minister’s office.
Perrin’s testimony could prove problematic for Harper, since it contradicts what Conservative campaign spokesman Kory Teneycke said last week: that Novak was unaware of the payment, and that he was not on the call when the payment was discussed. Harper himself defended Novak to reporters Thursday.
The testimony also contradicts Wright’s claim that Novak only popped in and out during the conference call, and was not one of the staff members in the loop on his payment.
Perrin’s tenure at the PMO in 2012-13 was not smooth sailing. He testified earlier in the day that he was “taken aback” when the prime minister rejected his advice on whether Duffy was qualified to sit as senator for Prince Edward Island.
Perrin had been tasked by Wright earlier to investigate the qualification issue and he did so by examining the “concept of residency.”
Wright told Perrin he was “gravely concerned” that Duffy could be legally considered a resident of Ontario — an obvious disqualification for someone sitting as a P.E.I. senator.
The prime minister’s men were desperately trying to quash the Duffy scandal by getting the senator to issue a public mea culpa in exchange for, among other things, a public statement by the prime minister that he and other Harper Senate appointees were all qualified to represent their provinces.
It was clear, said Perrin, that the objective of the PMO and Senate Conservative leadership was to “protect” senators.
“In reading through the entire chain (of emails) forwarded to me it was very clear to me that the objective being sought was to ensure that the test for constitutional residence under the Constitution Act would not disenfranchise any currently sitting Conservative senators.”
Duffy has pleaded not guilty to 31 charges of breach of trust, bribery and fraud, partly related to his claims that Cavendish, P.E.I., was his primary residence rather than Ottawa, the city in which he has lived since the 1970s.
Perrin said he sent the “relevant constitutional provisions” in an email to Wright and two other senior Harper staffers.
“I identified that it is the Senate who determines whether a senator was eligible to sit or not and ... that a senator should be resident in the province of their appointment.”
Perrin, who worked at the PMO from April 10, 2012, before resigning in March 27, 2013, testified that his memo was returned by Wright with minor changes and sent to Harper.
“It would have been approved by the senior leadership and then the prime minister provides us with what is known as a ‘return’ — he literally writes on the memo itself.”
Perrin testified that Harper took the position that an 1867 clause in the Constitution Act that a senator must own at least $4,000 of property in the province of their appointment to qualify was sufficient.
“I was immediately taken aback (by) the prime minister’s decision that if you simply own $4,000 of property that made you a resident.
“Both legally and practically, it seems untenable,” he added. “I would not be able to consider myself a resident of Nunavut — having never visited there — simply by having $4,000 of real property.”
Perrin said he replied “as diplomatically as possible” through the PMO chain of command that the view taken by the prime minister was not consistent with basic legal interpretation and that “I didn’t agree with it.”
Perrin was overruled and Harper subsequently stated in the House of Commons that all his senators conformed to residency requirements that have “been clear for 150 years.”
When Nigel Wright told Mike Duffy’s former lawyer on a phone call that “Sen. Duffy will be repaying his expenses because I will be paying for them,” what took Ben Perrin’s breath away “was how, without missing a beat,” the two immediately proceeded to discuss “the moving of the actual dollars.”
Until that pronouncement, Perrin told Ontario Court Justice Charles Vaillancourt at Duffy’s criminal trial, Janice Payne, who was then representing Duffy in secret negotiations with Wright and other officials in Prime Minister Stephen Harper’s office, was saying that Duffy was on the verge of recanting his agreement to repay $90,000 in ill-gotten expenses and that he was prepared to go and make his case with the independent auditors the Senate had hired to probe the residency and related expenses of Duffy and two other Conservative senators.
But, once Wright said he’d be paying for Duffy, all those concerns appeared to vanish.
After that, Perrin said, Payne and Wright just got down to the gritty business of when and how the funds would flow.
His testimony lends heft to the emerging picture that all this was nothing more or less than a de facto plea bargain arranged between two willing sides and, for both of them, much more about money than principle.
Wright’s bank draft for $90,172.24, with a note in the corner that read “Senate expenses,” arrived at Payne’s office four days after the call, on March 26, 2013.
Now an associate professor of law at the University of British Columbia, Perrin was at the time Prime Minister Stephen Harper’s special adviser on legal affairs and his in-house legal counsel.
Though he wasn’t intimately involved in most of the grimy backroom machinations of the PMO, Perrin had been brought in by Wright, then Harper’s chief of staff, to deal with Payne in working out the deal.
Unusually, Perrin’s own evidence preceded him to the witness stand, in that an incendiary part of his lengthy statement to the RCMP was read aloud in court earlier this week by Duffy’s lawyer, Don Bayne, as Wright was testifying.
So by the time Perrin arrived in the flesh on Thursday, it was already well-reported that he and Wright had different memories of that key meeting and phone call.
Their significant difference is that Perrin remembers, in great detail, that Ray Novak, the man who is now Harper’s current chief of staff and was then his principal secretary, was both in Wright’s office, when Wright first told him he was personally repaying, and then a minute or so later on the call, when Wright also told Payne the same thing.
Wright, by contrast, said that though that was the plan, Novak in fact was in and out of the room and not on the call with Payne.
Who heard Wright declare he was personally paying back Duffy’s expenses is important politically, if not to the actual matter of Duffy’s guilt or innocence, because the Prime Minister has long maintained he didn’t know what Wright was doing and that when he found out, he held “accountable” the only two people responsible for the deal — Wright, who paid the money and left the PMO afterwards, and Duffy, who was booted from the Conservative caucus and then later charged with 31 fraud, breach-of-trust and bribery offences by the RCMP.
What led to the call, Perrin said, was Payne telling him the day before that Duffy was “planning on a dramatically different course of action” than he’d agreed to: There would be no more acquiescent Duffy, in other words.
Perrin said he gave Wright a heads-up about the on-the-boil Duffy turnaround — the 69-yearold had announced, just a month earlier, that he may have made a mistake and would be paying back the money.
He remembered where he, Novak and Wright sat at Wright’s boardroom table, and even recalled looking to “my right to see Mr. Novak’s reaction, and he didn’t have any reaction” when Wright first said he’d be paying Duffy’s tab out of his own pocket.
(Novak, for the record, isn’t expected to be a witness at trial, but Conservative officials publicly maintain he didn’t know Wright was paying the money personally.)
With the PM’s former chief of staff and former legal counsel apparently at odds, and the country in mid-election, the opposition parties and those who see Harper as the embodiment of darkness have been gleefully feasting on the bones of the schism.
News networks Thursday were awash with breathless reports of Perrin “testifying under oath” — lawyers call this bootstrapping, by the way, meaning it’s an attempt to bolster evidence — and saying unequivocally that Novak was there.
In fact, of course, every witness in every court in Canada testifies under oath, or affirmation to tell the truth, often, it must be said, to no noticeable effect whatsoever. Any regular court observer will have seen people lie their noses off after solemnly swearing on the Bible, other holy books or an eagle feather to do just the opposite.
Wright also testified under oath, yet because he’s deemed a loyal soldier for Harper, and because his version of events doesn’t conform to what so many Canadians want to believe, his evidence was viewed with naked suspicion.
The fact is that honest witnesses testifying under oath in court routinely contradict one another, and it doesn’t mean one of them is lying.
Each may be testifying truthfully, each may claim to be absolutely certain about their evidence, none may have a dog in the race.
And yet they disagree, and one of them has to be mistaken.
This is how eyewitness descriptions — the bad guy was tall and thin, or short and dumpy; white or brown-skinned; bald with a moustache or just bald, or 10 shots were fired, or two, or in one burst or three — have come to be deemed unreliable, and certainly not enough, without some real corroboration, to convict an accused person.
That may not be what’s happening here at the Duffy trial, but it has to be granted that it’s at least a possibility.
In fact, of course, every witness in every court in Canada testifies under oath, or affirmation to tell the truth.