Monday, 25 April 2016

SENATOR DUFFY: The charge, the trial and the verdict  (part 1)                                              

Truly one of the most fascinating trials in Canada took place in Toronto, Canada in which the accused was charges with 31 crimes. Those words that are in Italic are my own. The rest are the words of the trial judge—Mr. Justice Charles H. Vaillancourt

The defendant                                                                                                               
Mike Duffy was born in Charlottetown, Prince Edward Island in 1946.That makes him in his 70s at the time of this writing.

He worked in radio there and for the Charlottetown Guardian newspaper before moving to Montreal, then on to Ottawa in 1971, where he reported for CFRA (News and talk show in Ottawa.  

He joined CBC’s Parliament Hill bureau in 1974 and moved to CTV in 1988 to host a Sunday public-affairs talk show, Sunday Edition. In 1999, he took up his last job in journalism, hosting politics shows on CTV Newsnet.
He is the recipient of multiple honorary degrees, and he was named to the Canadian Association of Broadcasters hall of fame in 1994.

 To say that he is plump is an understatement. Subsequently, his heart remains a concern to him and his doctor given that he has already undergone two open-heart surgeries. Duffy also suffers from diabetes and other health issues. In October 2013, he sought medical leave from the Senate because of problems he had with “unstable angina.”

Misconduct in the past

He was sanctioned by the Canadian Broadcast Standards Council in 2008 for airing tape of embarrassing “false starts” by the Liberal party’s then-leader Stéphane Dion in an interview with CTV’s Atlantic Canada affiliate. The recording emphasized Dion’s weak English as he struggled with a convoluted question from CTV’s Steve Murphy. He also pleaded guilty to impaired driving in 1990 and he lost a tax court case in the mid-1990s over his attempt to claim clothes he wore on the air as a tax-deductible “uniform.”

Appointment to the Canadian Senate

On January 26, 2009, Mike Duffy embarked on a new career as a member of the Senate of Canada, representing his home province of Prince Edward Island. As a Senator, Prime Minister Harper made the appointment. Duffy had been active on the Standing Committee on Agriculture and Forestry and the Standing Committee on Rules, Procedures and the Rights of Parliament  until he was suspended in November 2013 without pay.

Canada’s 105 senators come from all walks of life, and from every province and territory. They reflect Canada’s rich mix of geographical, religious, ethnic and linguistic communities, gender and age, interests and political perspectives, expertise and experience. 

Senators are generally affiliated with a political party. The Government caucus is formed by the senators affiliated with the governing party in the House of Commons. The Opposition caucus is formed by the non-government party with the most seats in the Senate. (This means that the Official Opposition in the House of Commons and the Senate may be different parties.) Senators may also choose to sit as independents or are appointed as independent senators.

Senators are appointed by the Governor General of Canada on the advice of the Prime Minister according to geographical divisions set out by the Constitution Act, 1867. They must own property and live in the geographical division for which they are appointed. Although originally named for life, senators now serve until the age of 75.

Living in the geographical division for which they are appointed is a bone of contention in the Senate and I will get to that later.        

Charges against Mike Duffy     

1. Committed a breach of trust between December 22, 2008 and March 6, 2013 by filing expense claims and/or residency declarations containing false information.
2. Between the same dates, defrauded the Senate of more than $5,000 by filing false expense or residency claims.
3. Fraud under $5,000 by filing a false travel expense claim some time after June 20, 2009.
4. Breach of trust for filing the above false travel expense claim.
5, Fraud over $5,000 for filing a false travel expense claim between June 21 and June 26, 2009.
6. Breach of trust for filing the above false travel expense claim.
7. Fraud over $5,000 for filing a false travel expense claim between Sept. 5 and Sept. 8, 2009.
8. Breach of trust for filing the above false travel expense claim.
9. Fraud under $5,000 for filing a false travel expense claim between July 2 and July 3, 2010.
10. Breach of trust for filing the above false travel expense claim.
11. Fraud over $5,000 for filing a false travel expense claim between Dec. 9 and Dec. 12, 2010
12. Breach of trust for filing the above false travel expense claim.
13. Fraud under $5,000 for filing a false travel expense claim between Dec. 30, 2011 and Jan. 5, 2012.
14. Breach of trust for filing the above false travel expense claim.
15. Fraud under $5,000 for filing a false travel expense claim between July 9 and July 10, 2010.
16. Breach of trust for filing the above false travel expense claim.
17. Fraud under $5,000 for filing a false travel expense claim between Sept. 11 and Sept. 13, 2010.
18. Breach of trust for filing the above false travel expense claim.
19. Fraud over $5,000 by filing false travel claims between April 10, 2009 and March 2, 2012.
20. Breach of trust for filing the above false travel claims.
21. Breach of trust in connection with awarding consulting contracts to friend and contractor Gerald Donohue.
22. Fraud over $5,000 in connection with awarding consulting contracts to Donohue.
23. Breach of trust for facilitating a payment to former intern Ashley Cain.
24. Fraud under $5,000 for facilitating a payment to Cain.
25. Breach of trust in connection with facilitating a payment to makeup artist Jacqueline Lambert.
26. Fraud under $5,000 for facilitating a payment to Lambert.
27. Breach of trust in connection with facilitating payments to personal trainer Mike Croskery.
28. Fraud over $5,000 in connection with facilitating payments to Croskery.
29. Between February 6, and March 28, 2013 did directly or indirectly, corruptly accept, obtain agree to accept or attempt to obtain a bribe.
30. Between February 6 and March 28, 2013, did accept a bribe from Nigel Wright, then-prime minister Stephen Harper's former chief of staff.
31. Breach of trust for accepting a bribe from Wright.

These charges amount to fraud, breach of trust and bribery which are very serious charges.

The trial  

Here’s a breakdown of the trial.

More than 1 year since the trial started on April 7, 2015.

64 days of court sittings.

54 Crown witnesses.

1 Defence witness: Mike Duffy himself.

8 days of testimony from Mike Duffy – the longest in Canada for anyone in the witness box.

7 days of testimony from Nicole Proulx, the Senate's top financial official at the time of Duffy’s alleged crimes.

former Prime Minister’s Office staffers who served as Crown witnesses: Nigel Wright, Benjamin Perrin and Chris Woodcock.

18 days of questions to then-Prime Minister Stephen Harper about Mike Duffy by reporters during last year’s election campaign.

current or former Conservative MPs who testified: John Duncan, Ron Cannan, Barry Devolin, Dean Del Mastro, Cathy McLeod, Andrew Saxton and Gary Lunn.

1 senator -- other than Duffy – who testified: Sen. George Furey.

3 rulings Judge Vaillancourt already made within this trial before Day 64: on admissibility of a document, on parliamentary privilege, and on admissibility of expert evidence.

112 separate numbered trial exhibits, totalling literally tens of thousands of pages.

2 days it took for the Crown and Defence to make their oral closing arguments.

84 pages written in the closing arguments by the Crown, compared to 408 pages by the Defence.

2 months from the time closing arguments concluded (February 23rd 2016) to April 22nd) ruling.

The verdict

Judge Vaillancourt’s verdict comprises of’308 pages in the full text. It took him four hours and three minutes to read his verdict in the court. He read the first half in the morning and the last half in the afternoon.

I spent an entire weekend (nine hours) studying his verdict and am now going to bring to your attention the highlights of the verdict. When I was practicing law, I conducted hundreds of criminal trials so I know what goes on in those trials. Any statement made in my following article that is in Italics are mine. The others are that of the judge. What follows is Part 1 of a three-part series re the judge`s verdict.


Duffy entered pleas of not guilty to thirty-one criminal charges related to breach of trust allegations, fraudulent practices, and accepting a bribe. Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. A judge hearing a case alone comes under the heading of a tribunal.

In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue.  The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses.  Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations.  First, if they believe the accused.  Second, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as a whole, they must find him not guilty.

First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence by the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

Mr. Bayne (Duffy`s lawyer) observed that his client testified in a fulsome, open, and expansive manner addressing every count and seeking to hide nothing.  Furthermore, Mr. Bayne highlighted the fact that the Crown (the prosecutor) limited its questions to a few specific counts and did not challenge Senator Duffy’s evidence on the great majority of the counts before the court.

 Mr. Holmes posed a number of questions for the court to ponder when assessing Senator Duffy’s credibility.  Was Senator Duffy a good listener?  Did he supply answers to the questions that were asked [of him] to assist the process?  Did he seem to have an agenda of his own?  Was there any undue response to questions posed to him?  Did he have a good memory of the events that he described?  Did his evidence of events change over time?  Did he seem to make it [the evidence] up as he went along?

The Crown considered that the “prepackaged endorsement” of candidates during some of Senator Duffy’s speaking engagement reflected adversely on Senator Duffy’s overall credibility.  I do not find that the practice of politicians spouting “for he’s a jolly good fellow” endorsements for their fellow political colleagues, triggers credibility concerns. 

The prosecutor was reaching for straws to support his position. In many criminal cases, the defence presents character witnesses before a verdict is made. It is a common practice. 

Mr. Holmes pointed the court to a number of Senator Duffy’s speaking engagements which he characterized as telling stories and jokes.  It is interesting to observe that although Mr. Holmes concedes that there is not a principle of law that anyone who works in the field of entertainment is unworthy of belief in which he suggested that it was a factor to be considered.

From the evidence, Senator Duffy seems to have been a very popular speaker and was much sought after to make speeches.  It appears that Senator Duffy often used humour and stories to convey his message to his audience.  I do not conclude that being an entertaining speaker impacts on Senator Duffy’s credibility.

The next area that caused Mr. Holmes concern focussed on Senator Duffy’s tendency to exaggerate.  As an example of this tendency, I was pointed to Senator Duffy’s depiction of Prince Edward Island’s virtues and attributes in terms that “there’s nowhere else you want to be” but I was then reminded that in fact Senator Duffy’s career path took him away from P.E.I.

I attach no significance to this whatsoever.  The fact that Senator Duffy pursued employment opportunities away from P.E.I. is a fact of life.  Although, he may have physically left P.E.I. to work, Senator Duffy continued to maintain many contacts with his place of birth and he had already secured his retirement home in P.E.I. well in advance of his appointment to the Senate.  As to the effusive nature of his praise for P.E.I., I agree that it did seem like a promotional advertisement for the Province.  However, I do not find this to impact negatively on the issue of credibility.

When Senator Duffy proclaimed that a Vancouver trip connected with Senate business had absolutely nothing to do about the impending birth of his grandchild, I am not convinced as to the complete accuracy of that statement.  It must be kept in mind that the court does not have to accept all the evidence of any given witness.  I can believe all of the evidence of a witness, some of the evidence of a witness, or none of the evidence of a witness.

Another area that concerned Mr. Holmes regarding the issue of Senator Duffy’s credibility was his tendency to drop in extraneous facts when answering questions.  An example of this conduct involved the PMO’s office (Prime Minister`s Office that consists of his advisors) spending a lot of money on photos.

The fact that extraneous nuggets of information are introduced by a witness does not mean that those facts are untrue or that the witnesses’ credibility is impacted in a negative way.  Any extraneous evidence that has no bearing on the issues at trial is to be disregarded by the court.  I am alive to the fact that a witness that throws extraneous points into the mix might be attempting to confuse the trier of fact and thus be deemed less credible. I do not find Senator Duffy’s desire to enliven his testimony with the occasional extraneous fact detrimental to his credibility.

I also was directed (by Mr. Holmes) to the Senator’s comment about Prime Minister Harper mistreating many individuals but when pressed to give examples, Senator Duffy was unable or unwilling to do so. I note this point but do not attach any significance to it. The Crown could have pressed this matter if they had wished but instead it was left in awkward silence.  

Mr. Holmes suggested that Senator Duffy was prone to jumping to conclusions and stating authoritatively events that were far less clear than the evidence suggested.  The example provided to support this point involved Senator Duffy being escorted into the Prime Minister’s office while the Chief-of-Staff of the Armed Forces was made to wait in the outer office. Senator Duffy expressed his opinion that he thought this was rude.  In cross-examination, Senator Duffy admitted that it was possible that the group awaiting an audience with the Prime Minister was waiting on another party to arrive.

This situation has more to do with Senator Duffy’s willingness to admit to the possibility of another possible interpretation of a particular situation than credibility. The aforementioned incident highlights the dangers associated with unnecessarily detailed evidence that has no real bearing on the issues at hand. (The prosecutor was right on that issue. Duffy`s remarks were completely unnecessary)

  The Crown highlighted what he perceived as a misstatement by Senator Duffy when Senator Duffy was holding up Exhibit 65 and stating that, “There’s lots in this report that the Harper Government would never touch, including death with dignity.”  

Mr. Holmes noted that there was no mention to death with dignity in any of the recommendations of the report but conceded that there was a passing reference in the report that in terms of enhancing palliative care, some seniors find it more dignified to die in their homes.  Mr. Holmes concluded that this evidence amounts to Senator Duffy conjuring up something that is unsupported and untrue and delivering it in a vigorous manner.

(The judge) I do not find that this perceived great divide impacts on Senator Duffy’s credibility.

Duffy was blaming Prime Minister Harper for all of his problems. His statement re ‘death with dignity’ really had nothing to do with Duffy`s problems relating to the charges he was facing. When you shovel a pile of shit over jewels you need on a special occasion, it is hard to find the jewels.

 Mr. Holmes pointed out that Senator Duffy’s evidence was internally inconsistent. He stressed that the juxtaposition between Senator Duffy’s testimony that he merely skimmed the rules and his embracement of a very detailed and technical knowledge of the rules to afford him a defence to one of the charges should cause the court concern.  

When considering both of the preceding examples of internal inconsistency, one must be mindful that when the events were unfolding, Senator Duffy might have skimmed over certain written materials and considered that the rules were vague.  However, once he was charged with the offences he is currently facing, he, perhaps with the assistance of his legal counsel, viewed the situation in a more defensive light.  The credibility alarm is not triggered by the circumstances referred to by Crown Counsel.

Mr. Holmes suggested that another example of internal inconsistency involved Senator Duffy’s evidence in connection with a meeting with Gary Lunn in Ottawa.  Mr. Lunn wanted Senator Duffy to visit an event in his riding with the purpose of enhancing Mr. Lunn’s re-election chances.  Senator Duffy had also testified that Mr. Lunn’s earlier election had robo-calling aspects to it that had been orchestrated by a black operation unit within the Conservative Party.  Senator Duffy became tongue-tied when the Crown asked him, “Why would you possibly help someone in their bid for re-election, knowing that they previously won a seat through election fraud?”

  I take it that the Crown is suggesting that if Senator Duffy was prepared to get involved in such political ugliness that it speaks to his credibility.  I think that this is a valid point and a factor to keep in mind when assessing credibility.

The Crown stated that Senator Duffy made misrepresentations to Sonia Makhlouf and others with respect to the Donohue contracts; to Senator Tkachuk at the time of his appointment regarding residency issues; and to the Prime Minister regarding his preference as to his Province of Appointment.

A closer examination of these issues will be discussed as they relate to specific charges.  I can say at this time that the discussions surrounding which Province Senator Duffy would represent and what was the key determining factor in that decision does not impact adversely on the credibility of Senator Duffy.  It would be expected that each party had reasons for their province of choice and in the end could rationalize the final decision.

Mr. Holmes suggested the Senator Duffy refused to admit even the most obvious things.  To illustrate this contention, the Crown referred to Senator Duffy’s use of pre-signed travel forms as a deceptive practice.  He highlighted the fact that Senator Duffy acknowledged that although the practice was poor it was not intended to be deceptive or misleading since it was not an uncommon practice and was done out of practicality and necessity.  I do not find that this factor impacts negatively on Senator Duffy’s credibility. I shall address the advisability of using pre-signed, blank travel forms later on in this judgment.

The Crown drew the court’s attention to the evidence of Senator Duffy as it pertained to whether Senator Duffy read all the background testimony with respect to the Special Senate Committee Report on aging.  After some toing and froing Senator Duffy finally answered a rather straight forward question.  This example of quasi-evasiveness, in and of itself, is not determinative of the issue of credibility.  However, I am aware of this situation when I determine the issue of credibility.

Mr. Holmes asked the court to consider whether or not the evidence given by Senator Duffy was reasonable.  To illustrate this factor, I was referred to the cancellation of Senator Duffy’s appearance at the Saanich Fair.  Was the Senator’s evidence surrounding his reaction to the cancellation reasonable?  Should Senator Duffy been more proactive in seeking out an explanation as to why he was cancelled at the last second?

I find that Senator Duffy’s response to the situation was just as reasonable as any other potential response. Senator Duffy stated that, “Well I didn’t think it was necessary [to telephone Mr. Lunn for an explanation of the last minute cancellation].  I could read between the lines.”

 I acknowledge that Senator Duffy has some areas that require the court to be vigilant about when weighing his evidence.  In addition to the specific issues regarding Senator Duffy’s credibility, I must remind myself that he loved the run-on answer providing an inordinate amount of information, much of which was rather peripheral to the questions posed. He also admitted that his memory was not perfect.  The truth of the matter is that this characteristic applies to everyone.  He had several private agenda matters that he felt compelled to work into his testimony.

At the end of the day, I find that Senator Duffy is an overall credible witness.  As I address the various charges contained in the information, I shall keep in mind any concerns that I have noted herein regarding Senator Duffy’s credibility and apply them to the particular fact situations.

This is the end of Part 1. Part 2 will be about specific charges that were laid against Duffy. 

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