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.
3 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.
7 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.
No comments:
Post a Comment