At long last, it’s judgment day for Mike Duffy
Thursday morning, the Elgin Street courthouse once more welcomes Sen. Mike Duffy and a mob of media for what could be his last day of his criminal case.
You’re telling me Mike Duffy is still on trial?
Yes. The trial has lasted just over a year, including several long breaks between court dates. The trial began April 7 last year. Thursday, Judge Charles Vaillancourt delivers his decision. What are the charges again? Duffy faces 31 of them, in four sets, stemming from the ways he used Senate money. The allegations of wrongdoing cover expense filings almost from the moment he quit as a CTV broadcaster to become a senator.
The first set concern his claiming his Kanata home as an expense — for both accommodation and meals — after former prime minister Stephen Harper appointed him a senator for Prince Edward Island at the very end of 2008. The Crown alleges those claims were fraudulent and a breach of the public trust, because he’d lived there for years before becoming a senator and it was always his primary residence, not a secondary one he had only because he needed a place to lay his head in the capital.
Defence lawyer Donald Bayne’s argument is that Duffy’s Prince Edward Island summer cottage became his most important residence the moment he became a senator for that province and there’s no definition of a primary residence in any written rule for him to test himself against anyway.
The second set have to do with trips Duffy charged to the Senate; there are a whole bunch of these with varying explanations. Some were trips to drum up Conservative party support and raise money in far-flung constituencies, which the Crown says was purely partisan political work and not proper to bill to the Senate. Others involved long visits with family with little bits of Senate business sprinkled in. Yet others were for medical appointments or, in one case, for a speech Duffy was paid thousands of dollars to give. The defence on these emphasized the broad range of a senator’s legitimate activities described in Senate rules.
(Retired Supreme Court judge Ian Binnie, who reviewed a number of other senators’ expense claims and reported a few weeks ago, explicitly rejected the idea that any bit of Senate work can justify expensing any trip, but that’s not a precedent-setting judicial decision.)
A third set of charges cover Duffy’s contracting practices in the Senate, whereby he arranged bulk contracts for his old friend Gerald Donohue and then had Donohue dispense money to people who did work for him — including an office intern, a makeup artist and a personal trainer. The Crown alleges this was a slush fund that enabled Duffy to transfer personal expenses onto his office accounts without anybody detecting it; the defence says it’s common for senators to have “general contractors” who hire subcontractors for jobs senators need done, and that senators have as much latitude with their office budgets as they do with their travel allowances.
The fourth set of charges has to do with Duffy’s accepting $90,000 from Harper’s chief of staff Nigel Wright to try to squelch the scandal over his housing expenses by paying them back. The Crown says that was a bribe, which Duffy demanded in connection with his senatorial duties; the defence argues that Wright set Duffy up as a patsy, forcing him to repay expenses even though he’d done nothing wrong, even pushing the money on him to make it happen. What’s going to happen? Nobody knows for sure except Vaillancourt. He could convict on all counts, acquit on all counts, or anything in between. It’s just conceivable that Vaillancourt will spend the day reading his reasons without reaching the conclusion and things will spill into a second day. Not likely, but it could happen.
Remember that the bar for a criminal conviction is high — it’s not enough for behaviour to just be distasteful or objectionable.
With that in mind, the bribery charges seem like they’ll be hard to make stick. Even accepting everything the Crown alleges, this is far from a stereotypical bribery case, where a politician votes a particular way in exchange for a bag of money. Maybe the exchange between Wright and Duffy should have been illegal, but it takes an expansive reading of the current law to conclude that it is.
The same is true for the trips Duffy charged to the Senate to go speak at Conservative party dinners, which most people wouldn’t be remotely surprised to hear of politicians doing. The Senate rules say partisan activities are legitimate Senate business; there’s an argument about whether that just means caucus meetings on Parliament Hill or extends to building support in British Columbia, but it does suggest that tooting the Tory horn on Senate time isn’t clearly illegal.
The decisions on other trips, where Duffy took advantage of a little Senate work for a lot of personal time, will depend on whether Vaillancourt adopts Binnie’s view that a fig leaf of Senate business isn’t enough or reaches his own conclusion that it is.
Duffy’s charging the Senate for his Kanata house, well, that’s anybody’s guess. If we rely on plain English and the way normal people would describe their lives, there’s no way that a seasonal cottage in Cavendish was Duffy’s primary residence. But normal people don’t live like senators, representing one place while spending much of their time in another. The Senate didn’t define a primary residence for its members and didn’t even consistently use the term in its paperwork.
At the far end of the spectrum, Duffy’s Senate contracts with Gerald Donohue are difficult to defend. (Duffy is only charged with fraud in connection with a few of them, though the trial heard evidence about a lot of others, too.) The Senate had previously refused to pay a makeup bill, volunteer interns are by definition unpaid, and the defence’s contention that Duffy was researching a national exercise program for seniors with the personal trainer isn’t backed up by any work product or by the trainer himself. The defence here amounts to the contention that a senator is entitled to spend public money as long as there’s a connection, however tenuous, he can claim to some public purpose. Maybe Vaillancourt will find that’s true.
What happens if Duffy’s acquitted?
If he’s found not guilty on all counts, he walks free. Perhaps right back up to his Senate office, if he wants to. In theory the Crown could appeal, though the prosecutors would have to argue that Vaillancourt made a significant mistake in applying the law. And if he’s convicted? Vaillancourt will likely set a date to hear the lawyers’ arguments about appropriate sentences, which will depend very much on how many findings of guilt Vaillancourt makes and on which charges. The defence could appeal convictions, though that would also mean arguing the judge made legal errors, and Duffy would have to consider the time and expense involved.
Duffy wouldn’t be automatically removed from the Senate unless he were sentenced to a long prison term that would keep him from physically attending sessions. He might resign, or the Senate could vote to expel him.
The Senate rules say partisan activities are legitimate Senate business … it does suggest that tooting the Tory horn on Senate time isn’t clearly illegal.