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Reevely: In a broken Senate, Mike Duffy was guilty of nothing

Ottawa Citizen logo Ottawa Citizen 2016-04-21 David Reevely, Ottawa Citizen

At the end of Mike Duffy’s crucifixion, he got to climb down from his cross and go back to work.

The senator for Prince Edward Island has suffered for the sins of the Senate, Judge Charles Vaillancourt ruled Thursday, acquitting him on 31 counts of fraud, breach of trust and bribery.

If anyone deserved to be nailed up, Vaillancourt found, it was the people working for former prime minister Stephen Harper, led by chief of staff Nigel Wright, who cut Duffy loose as soon as he became a political liability.

“Nigel Wright and his crew,” as Vaillancourt described them, pushed senators around like chess pieces and ultimately bullied Duffy into repaying $90,000 in legitimately claimed expenses because the scandal over them had become inconvenient. They threatened him, cajoled him, forced him into doing something he resisted “kicking and screaming, every step of the way.”

If Harper were still prime minister, Vaillancourt’s ruling would have gone off in the Prime Minister’s Office like a bomb. Wright’s and other aides’ “plotting” was shocking and unacceptable, the judge found.

The acquittals on the three charges related to Wright’s money could not have been more total. Duffy never truly accepted the money, Vaillancourt ruled. If he hadn’t acquitted Duffy “on the merits,” he would have made a legal finding that the charges were illegitimate in the first place.

Duffy’s worst sins were occasional incidents of slapdashery with administration, the judge ruled, in which he was encouraged by other senators and the culture of the Senate itself.

In sum, he accepted defence lawyer Donald Bayne’s arguments in almost every particular.

The sloppiness of the Senate’s rules excused Duffy’s conduct in claiming his Kanata home as a secondary residence, in taking trips costing tens of thousands of dollars (with mere tablespoons of Senate business justifying some of them), and in using contracts for an old friend to pay numerous expenses the Senate might not have been willing to cover if he’d filed for them directly, Vaillancourt found.

“I am encouraged that the Senate seems to have made some significant changes,” Vaillancourt said, tightening up its rules in response to Duffy’s case. But when Duffy did the things the Crown charged him for, the rules were such that everything — everything — he did was defensible, the judge found.

For example: Duffy billed the Senate for two trips to Vancouver, where he stayed several days with his children there and had a lunch with some businesspeople (in one case) and popped over to Victoria to speak at a charity dinner (in the other).

“I leave the cost analysis of the trip to Senate Finance,” Vaillancourt said of that second voyage, which cost the public something like $10,000.

Maybe it was a terrible use of public funds. Maybe Duffy’s fellow senators should have done something about it. But it wasn’t against the law, Vaillancourt found.

Did it matter that for some trips, Duffy seemed to have some personal business that required a flight, and then found some fig-leaf of public work to paste over it?

It did not.

Nothing written down anywhere says that’s improper. There’s no test for what the “real” reason of a trip was, and Vaillancourt said any attempt to impose one would be impossible.

“The task of this court is not,” he said, “to fix the Senate rules and policies.” That’s the Senate’s job.

(Retired Supreme Court judge Ian Binnie, in a separate process, has actually found the opposite, that a fig-leaf of Senate business doesn’t justify billing any old trip to the Senate. But that was in an investigation he carried out for the Senate, not a binding judicial ruling.)

Over and over again, Vaillancourt ruled that Duffy’s intentions were honourable, and if he made mistakes, they were accidental. A personal trainer he’d previously employed really did become a consultant on seniors’ fitness, Vaillancourt found, doing legitimate Senate business while putting Duffy through his paces on an exercise bike.

If that trainer was paid through Duffy’s buddy Gerald Donohue so the Senate didn’t know about him, perhaps that wasn’t a “best practice.”

Perhaps he should have had a contract that spelled out exactly how the relationship between the two changed, and that was run through the Senate’s finance department. But the fact no such contract wasn’t written up wasn’t criminal, Vaillancourt found.

The same for an office volunteer Duffy arranged to pay $500, which Vaillancourt ruled was a violation of the Senate’s rules and maybe an episode of bad judgment. But also not criminal.

Duffy’s case was helped immeasurably by a Crown prosecution that left important witnesses uncalled — especially Sen. David Tkachuk, the Conservatives’ “guru” on Senate rules and propriety, whom Duffy consulted on many of his practices. The court heard Duffy’s account of what Tkachuk told him, which was always supportive of what Duffy wanted to do; if Tkachuk’s account was any different, the Crown offered no evidence of it.

Crown prosecutor Mark Holmes, who cross-examined Duffy, apparently thought he’d demolished the senator’s credibility by demonstrating that his memory was faulty about such basic things about the circumstances of his appointment to the Senate — he’d remembered a key conversation as being around the time the CBC got a new president, when it can’t have happened that way.

Vaillancourt didn’t see it that way. Duffy was “an overall credible witness,” the judge found, whose occasional errors didn’t make the rest of his testimony unreliable.

Even so, the prosecutors left numerous questions unasked. For example: When Duffy billed the Senate for flights to speak at Conservative riding-association events, the party groups typically picked up the costs of his hotels. Why was that? Doesn’t it suggest that the riding association people thought some of the expenses weren’t for real public business?

An excellent question, Vaillancourt observed. One that Holmes might have put to Duffy during his cross-examination, but didn’t.

Holmes declined to talk about the case afterward; he and his fellow Crown Jason Neubauer retreated to the Crown attorneys’ section of the courthouse immediately after Vaillancourt finished reading.

Bayne, concluding what might be his last case after a 44-year career in criminal law, was happy to discuss the ruling.

“I don’t think I’ve ever been witness to such a resounding acquittal. There are near-misses and close calls. Justice Vaillancourt made plain, this was a resounding not-guilty,” he said. The Senate judged Duffy before his time, Bayne said. The rule of law and due process apply to everyone, he said, and Duffy is pleased to have gotten it from a court, if not from his colleagues.

“Political figures, public figures are also entitled to due process. I would say that Sen. Duffy has been subjected for the last two-and-a-half to three years, to more public humiliation than probably any Canadian in history,” he said.

Duffy departed the courthouse without speaking. He’ll be welcomed back at the Senate as soon as he chooses to return.

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