Duffy trial could go past end date, judge warns
Court hears that senators were allowed to skirt rules for contracting of services
OTTAWA— The trial of suspended senator Mike Duffy may drag past its scheduled end date in June and on into the summer, the fall federal election campaign or even beyond into 2016.
“At the rate we’re going” the trial will need more than the 41 days set aside in April, May and June, Judge Charles Vaillancourt suggested Wednesday, urging lawyers to think about scheduling more time to finish.
“I don’t see us completing our task in the assigned number of days,” he said in court.
By day’s end, as Vaillancourt left the Ottawa courthouse, he was asked by reporters if he is confident the trial will wrap up before the expected fall election Oct. 19.
He began to reply: “I haven’t — ” when another reporter interjected: “Or this year even?”
“No comment,” he said. “I don’t know how long it’s going to take because I don’t control the number of witnesses or how long it takes with each witness. So we’ll just have to wait and see.”
Vaillancourt said his schedule can always be rearranged, and he is prepared to come back to Ottawa from Toronto to deal with the case, but it’s not clear whether other court resources, including the courtroom, and other key players will be available.
One of the Crown attorneys arguing the prosecution’s case against Duffy on charges of fraud, breach of trust and bribery has other trials beginning after this one.
The key RCMP investigator, Greg Horton, who was promoted to sergeant when the investigation began in the winter of 2013, is assigned to a similar Senate expenses investigation into former Liberal senator Mac Harb, whose fraud trial is scheduled to start in August.
Upon leaving court, Duffy’s lawyer, Donald Bayne, said only that he can clear more time but he wouldn’t speculate on the trial schedule. Asked if he thought it could be done by voting day, Bayne replied, “I certainly hope so . . . I expect it should.”
Bayne, after a 40-year career at bar, has a reputation for meticulous attention to detail. He has exhaustively cross-examined the first two Crown witnesses.
In doing so, he has effectively turned the trial into an indictment of fuzzy Senate rules and poor oversight by Senate officials. On Wednesday, he drew from a Senate human resources clerk the admission that Senate officials allowed senators like Duffy to skirt the policies and rules for contracting ofgoods and services.
By the time Bayne was done with her, Sonia Makhlouf had essentially walked back all her testimony for the Crown that Duffy’s research and of- fice budget would not have covered things such as photo frames, makeup services, and payments to subcontractors for speech writing, media monitoring and consulting on virtually any subject of interest to the senator.
Under Bayne’s questioning, Makhlouf conceded that not only did senators have broad discretion to decide what kinds of goods and services they required for their loosely defined parliamentary functions, but even when they failed to comply with certain guidelines that were set out, oversight and enforcement of those rules was lax.
Bayne grilled her repeatedly on various “common-sense administrative solutions” — as he called them — that Senate officials used to allow senators the “flexibility” to do their public work, suggesting that rules could be bent to allow senators to function.
“I’m not faulting you for this, but some of what Sen. Duffy is on criminal trial for here is administrative decisions and you were making them too, right?” “Yes,” she said. Bayne highlighted an email from one of Makhlouf’s colleagues to Duffy’s office that told Duffy he couldn’t hand out contracts for indeterminate amounts, as on a request for a services contract for Maple Ridge Media, a company owned by Duffy’s former colleague Gerald Donohue. Duffy said the amount to be paid was “TBD” (to be determined).
Marie-Chantale Thériault suggested the senator should estimate an approximate amount, and adjust it later. Bayne said Thériault’s email “is evidence of the degree of discretion all of these senators have: ‘just put an amount in there and you can change it up or down later,’ she suggests to the senator?”
Makhlouf squirmed. “That’s what I’m reading, yes.”
Makhlouf conceded that the paper trail on Duffy’s research contracts showed she also tried to smooth over irregularities such as backdated requests after the work had already begun that were passed onto Senate finance officials for payment. Makhlouf said she may have asked an occasional question, if a form was improperly filled out or a detail missing, but Senate clerks often simply deferred to the senators “if they said services have already started and we have an obligation to pay the contractor, so we’ll go with his words and we’ll go ahead and conclude the contract.”
“So we can see from your evidence then, that the guidelines and policies may be one thing but the practices in fact are another, right?” asked Bayne.
“Yes,” said Makhlouf.