SENATOR DUFFY: The charge, the trial and the verdicts (part 3)                                           

On Monday, April 25^th I presented to my readers part 1 of the judge’s verdicts with respect to Senator Duffy’s trial. In that article I described his background, the 31 charges he was facing and the issue of the credibility of the senator while he was testifying in court.

On April 27^th, I presented to my readers part 2 of the judge’s verdict with respect to Senator Duffy’s trial. In that article  I described two of the 31 charges Duffy was facing with respect to the accusation that he had fraudulently claimed that his home in PEI (Prince Edward Island—a province of Canada was his permanent home despite the fact that he was spending most of his time in his home in the province of Ontario. Mr. Justice Justice Charles H. Vaillancourt dismissed those two charges laid against Senator Duffy.

Today, April 29, I will present to you some of the specific charges he was facing and the observations of the judge when reviewing the testimony and the arguments presented to him.

Because there were 31 charges laid against Senator Duffy, I will only choose a few because to deal with them all would be too time consuming.

Everything I present to you that are in Italics are those of my own commentary. The rest are the actual words of the judge. And now, part 3 of the three-part series re the judge`s verdicts.

Expenses relating to travel expense claims – counts 3 to 20

There are too many counts to deal with in today’s article so I will only deal with the ones that I think will interest you.

Senators are permitted to charge the taxpayers for expenses incurred while traveling on Senate business. The Crown (prosecutor) argued that some of the expenses Duffy incurred were fraudulent. The prosecutor also argued that Duffy paid money to a friend using taxpayer’s money for work that was not related to Senate business. The prosecutor further argued that Duffy paid a bribe to an official in the Prime Minister’s Office. These are the three charges that I will deal with. I will also tell you what the judge thought about the charges having been laid against Senator Duffy and give you the judge’s final verdict. And now, I will begin with the judge’s words.

Michael Dennis Duffy entered pleas of not guilty to thirty-one criminal charges related to breach of trust allegations, fraudulent practices, and accepting a bribe. He was acquitted of the first two with respect to the actual location of his permanent residence.

Crown’s Position on Travel  and other Expense Claims

No Senate resources can be used in respect of a Senator’s “private business interests” or while “attending to one’s private concerns”;

Senate resources cannot be used for non-Parliamentary partisan activity;

All travel costs and entitlements have to be reasonable;

No person shall cause the Senate to pay or reimburse a cost under this chapter (policy of the Senate) unless the cost was actually incurred, reasonable and authorized.

There is an expectation that Senators will exhibit financial prudence in connection with travel.  Once again, this is a self-evident principle given their overarching role to promote the public interest.  Subject to the need to fulfil their parliamentary functions and to obtain reasonable comfort and convenience, a person (a Senator) shall exercise due economy in the selection of travel options.

The existing policy framework declares it to be perfectly acceptable for a Senator to receive some incidental personal advantage in the course of discharging their parliamentary functions.  The incidental personal use doctrine applies to benefits or advantages that are derivative or ancillary to the predominant or main purpose for which the cost is incurred.  No other interpretation is possible without rendering the concept of “incidental use” meaningless.  The further restriction on the applicability of this principle is that the incidental benefit cannot give rise to any additional costs to the Senate. A person may use a Senate resource for personal purposes where such use is minor, customary and reasonable and does not give rise to a direct cost to the Senate or to a Senate expenditure.

Mr. Holmes (the prosecutor and also referred to as the Crown) stated that while it is true that Senators enjoy a broad discretion; they do not enjoy limitless discretion.  There also are limits imposed on the sort of expenses that are properly billed back to the Senate.  There is a system of checks and balances imposing responsibilities on all parties, most notably the Senator himself or herself who has the most detailed and intimate knowledge of the underlying purpose of the expenses. 

The Crown notes that the practice of relying on pre-signed forms reflects on personal integrity and therefore credibility.  It is a “poor practice” according to Speaker George Furey.  Mr. Holmes contends that each pre-signed claims form is a fraud in its own right.  Senate Finance rely on the information contained in those forms.  Maggie Bourgeau explained what a Senator’s certification at the bottom of the form meant to her: it meant that the Senator had reviewed the contents of the form and agreed that the basis for the claim was correct and therefore, it was ready to be processed.  The staff in Senate Finance rely on the Senator’s certification. Mr. Holmes concludes that in the case of many (quite possibly most) of Senator Duffy’s claims the Senate Finance staff was actively deceived. The Crown takes the position that Senator Duffy’s practice of pre-signing forms is unethical and undermines his oft-repeated assertion that he conducted himself openly, transparently and honestly. 

The stated reason for Senator Duffy’s reliance on pre-signed forms was a concern that he would exceed the 60 day deadline in filing his claim.  Mr. Holmes questioned whether there is any basis in reality for Senator Duffy’s concern about exceeding the 60 day limit for the filing of claims.  There does not appear to be any period of time where Senator Duffy is away from Ottawa for 60 consecutive days.  Furthermore, on the only occasion where Senator Duffy did exceed the 60 day time limit (in 2011), the claim was processed in the ordinary course. 

This raises the question—did he really need to be in possession of pre-signed forms which state; “I certify that the foregoing expenditures have been incurred by me on parliamentary functions, as defined in the Senate Administrative Rules” and “I hereby certify that these charges are in accordance with the Senate Administrative Rules”

Mr. Holmes stated that Diane Scharf, Senator Duffy’s replacement Executive Assistant, fully embraced the deceptive, unethical and illegal practice of relying upon pre-signed forms.  Ms. Scharf said the practice was widespread, although did not specify how she knows this, and her work for Senator Duffy represented her first work in the Senate.  Whether this is true or not, Mr. Holmes contends that it doesn’t make the practice appropriate.  The use of pre-signed forms had the effect of eliminating any independent review by Senator Duffy of his claims, and it undermined efforts by finance officials to make sure the claims were appropriate.  Quite naturally, Ms. Bourgeau (Duffy’s Executive Assistant) relied on Senator Duffy’s expense claims as having his attestation of accuracy and propriety when in most cases he hadn’t signed off on the claims at all.

That practice of Duffy’s Executive Assistant was a very bad practice. The judge said;

I also find that the use of pre-signed travel claims forms was not an uncommon practice on Parliament Hill.

The argument might be made that the use of a pre-signed form has certain efficiency and convenience components and therefore meets the needs of individuals that travel with some frequency.  Once the trip is completed, the receipts are forwarded to the preparer of the travel claims form for entry and then the documentation is submitted for payment. Regardless of how common the practice was, I agree that the use of pre-signed blank travel forms is not a good business practice. It increases the chance of errors being made and not being detected.

 I note that Senator Duffy did not restrict himself to just signing travel claims in blank. He also was in the habit of leaving signed, blank personal cheques with his Executive Assistants to facilitate the payment of his personal Senate-related charges that would arise from time to time during his absences from Parliament Hill. Again, this practice can be viewed as risky and ill-advised.

 However, I do not find that Senator Duffy possessed any sinister motive or design when he made use of signed blank travel claims. Nor do I consider Senator Duffy’s use of them as to be a negative reflection on his integrity or credibility.

Mr. Holmes stated that the testimony heard in this trial clearly revealed that Senator Duffy was engaged in non-parliamentary partisan activities in respect of his travels on June 19^th and 20^th, 2009. The Crown’s summary of the facts surrounding these charges is to be found after the reproduction of counts 3 and 4.

Count 3.  Fraud under $5,000 by filing a false travel expense claim some time after June 20, 2009.

Count 4. Breach of trust for filing the above false travel expense claim.

Mr. Holmes suggested that Senator Duffy’s west coast travel from June 21st to 30th, 2009 was directed toward non-parliamentary partisan political activities.  A Crown’s summary of the facts surrounding these charges is to be found after the reproduction of counts 5 and 6.

Count 5. Fraud over $5,000 for filing a false travel expense claim between June 21 and June 26, 2009.

Count 6. Breach of trust for filing the above false travel expense claim.

Senator Duffy was clear that the principal reason that he was appointed to the Senate was to provide “third party validation” for the Prime Minister in his quest for a majority government.  His job was to expand the base of the Conservative Party. Hence he traveled across Canada for this purpose at the Senate’s expense.

Mr. Holmes concedes that the Senate is a partisan institution and that Senator Duffy is perfectly free to engage in partisan activity.  However, he contends that it is inappropriate for a Senator to make a claim for certain expenses associated with that sort of activity.  To support this position, Mr. Holmes makes reference to the introductory letter Senator Duffy received from Nicole Proulx wherein she wrote:

“Senate resources may not be used for partisan matters that are non-parliamentary in nature such as nomination campaigns or election campaigns.”

Senator (now Speaker) George Furey was the Chair of the Internal Economy Committee from October 2004 until March 2010.  In his testimony he distinguished, simply and effectively, the difference between parliamentary partisan activity (for example caucus activity, wherever undertaken) and non-parliamentary partisan activity (for example “working for the election of a Member of Parliament”.)  Senate resources may be used for the former; but not the latter. 

The (Senate Internal Economy) Committee has the exclusive authority to determine whether any previous, current or proposed use by a senator of any funds, goods, services or premises made available to that senator for the carrying out of parliamentary functions is or was proper, given the discharge of the parliamentary functions of senators, including whether any such use is or was proper having regard to the intent and purposes of the regulations made under subsection 19.5(1). Any senator may apply to the Committee for an opinion with respect to any use by that senator of any funds, goods, services or premises referred to in subsection (1).

Mr. Holmes suggests that the MPs and candidates who invited Senator Duffy to attend their events seemed to appreciate the difference.  More than one referred to attendance at their event to be ancillary to other business that would have the Senator come to B.C.   Mr. Duncan testified that Duffy’s attendance would be contingent upon him “tying it to some other event on Vancouver Island”.  In describing how arrangements are made to secure guest speaker for events, Mr. Cannan spoke about the need to maximize a guest speaker’s itinerary and stated that; “they don’t come specifically for the EDA event”.  Michael Lauer who testified in respect of Senator Duffy’s attendance at the fundraising event in the Yukon testified that Senator Duffy attended at Senator Lang’s invitation and was “already on the west coast on government business.”  

The crown contends that the expense claims referred to in counts seven through eighteen were personal in nature and not appropriate expense claims.  Senator Duffy adopts the opposite position and contends that all of the travel expenses represented by those claims were for the discharge of parliamentary functions.  The recurrent theme is that certain activities were undertaken by Senator Duffy to mask the true purpose of the travel.  During the period in question, Senator Duffy lived in Ottawa, but he was appointed to represent P.E.I.  Several of the impugned claims represent travel to British Columbia, inviting the obvious question:  what is the senator from P.E.I, doing in B.C.?  Mr. Holmes says that the answer is obvious from the diary, exhibit 7.  Whatever else may be said about Senator Duffy, he is deeply committed to his grown children, hence the trips to (B.C. on significant family events:  a daughter appearing in a play, the birth of a grandson, (It was) a Christmas vacation.

The Crown continued, that an examination of the timing and sequence of events confirms this theory. In many cases Senator Duffy had already arranged the travel in question before lining up some unnecessary “work function” to pass the cost of the trip on to the Senate. As indicated above, the SARs (Senate Rule) authorize incidental personal use where no additional costs are borne by the Senate.  The conduct in question represents a perversion of that rule.   In Mr. Holmes’ view, Senator Duffy calls the true purpose ancillary and attempts to imbue the travel with a sense of legitimacy.

The existing policy framework declares it to be perfectly acceptable for a Senator to receive some incidental personal advantage in the course of discharging their parliamentary functions.  The incidental personal use doctrine applies to benefits or advantages that are derivative or ancillary to the predominant or main purpose for which the cost is incurred.  No other interpretation is possible without rendering the concept of “incidental use” meaningless.  The further restriction on the applicability of this principle is that the incidental benefit cannot give rise to any additional costs to the Senate.

 Mr. Holmes stated that while it is true that Senators enjoy a broad discretion; they do not enjoy limitless discretion.  There also are limits imposed on the sort of expenses that are properly billed back to the Senate.  

Mr. Bayne (Duffy’s lawyer) submits that the Crown has failed to prove beyond reasonable doubt, on all the evidence, the filing of false or misleading information as well as fraudulent and/or corrupt intention on the part of Senator Duffy.  He maintains that there is no proof to the criminal law standard of either the actus reus (criminal act) or mens rea (criminal mind) of the crimes alleged in these counts.  Mr. Bayne states that there were no false or misleading statements and no statements were made knowingly with the intention to undertake a prohibited act.  Further, counsel for Senator Duffy stated that there has been no proven marked and substantial departure from the standards expected (and set out in the SARs) of other Senators regarding travel expenses nor demonstration beyond reasonable doubt of the “elevated” mental element of corrupt purpose.  Finally, Mr. Bayne contends that all of Senator Duffy’s travel related to these claims was validly within the express administrative provisions of the Senate Administrative Rules (the SARs), the comprehensive code governing use of Senate resources, and Senator Duffy believed such travel to be within the rules as he read them, understood them, and had them explained to him by Senate authorities and that the contrary has not been established beyond reasonable doubt by the Crown.

The Crown has not established the guilt of the accused on counts 7 and 8 beyond a reasonable doubt and accordingly, the charges are dismissed.

Senator Duffy testified that he travelled to Peterborough to meet Mr. Del Mastro who was at the time the Parliamentary Secretary to the Minister of Canadian Heritage, a portfolio responsible for funding of the arts.  Senator Duffy had been told by Mr. Del Mastro that a local Christian radio station was looking for advice as to how to make their enterprise economically viable and Mr. Del Mastro had asked Senator Duffy to come to Peterborough to meet these people and assist them (given his media experience).

Senator Duffy was at the same time trying to advance the case for funding for the Charlottetown Confederation Centre of the Arts in P.E.I. Mr. Del Mastro was in a position to help that particular project, being well-placed in Heritage and being, at that time “part of the Prime Minister’s inner circle”.  Senator Duffy wanted a one-on-one with Mr. Del Mastro to advance the P.E.I. public arts project and figured that helping Mr. Del Mastro by helping the local broadcasters would create “an I.O.U.” for the P.E.I. project.  Mr. Bayne submits that Senator Duffy travelled to Peterborough for this purpose, a public purpose  to advance the arts in P.E.I. – and for no personal or private business purpose.  He was unaware of the existence of a Peterborough dog show, let alone when it took place, not being from Peterborough and seldom having been there, He attended the dog show.  

 I am not satisfied that the Crown has proven the guilt of Senator Duffy on counts 9 and 10 beyond a reasonable doubt and accordingly find the accused not guilty.

 Counts 11 and 12 allege that Senator Duffy (11) sometime after the period between the 9^th day of December, 2010, and the 12^th day of December, 2010, at the City of Ottawa, in the East Region, did by deceit, falsehood of fraudulent means defraud the Senate of Canada of money, exceeding $5,000.00 by filing travel expense claim T64-09996 containing false or misleading information contrary to section 380(1)(a) of the Criminal Code of Canada and further that he (12) sometime after the period between the 9^th day of December, 2010, and the 12^th day of December, 2010, at the City of Ottawa, in the East Region, being an official in the Senate of Canada, did commit a breach of trust in connection with the duties of his office by filing travel expense claim T64-09996 containing false or misleading information contrary to section 122 of the Criminal Code of Canada.

Mr. Holmes considers that the true purpose of this trip was to be present for the birth of his grandchild and it was packaged in the guise of a charitable event for homeless veterans.

Mr. Holmes contends that the cost of Senator Duffy’s attendance at the Christmas party where he stayed for less than one hour exceeded $10,000.  Furthermore, he states that on the face of it, this travel is “unreasonable” and consequently not an appropriate cost to pass on to the Senate considering the nature of the event and Senator Duffy’s contribution and that the travel offends the “due economy” requirement as set out in the SARs.

Mr. Bayne takes the position that these counts refer to Senator Duffy’s travel to Victoria (through Vancouver) December 9 to 12, 2010 to attend, as a featured speaker, a non-partisan, public, “broad-based” event to which “every household” in the area was invited, in aid of and to raise funds for Cockrell House, a facility for homeless veterans who need assistance transitioning to civilian life. The Crown alleges fraud and breach of trust because Senator Duffy also, while in Vancouver, saw his daughter, Miranda, who had just given birth.

Duffy certainly had every right to visit his family in Vancouver since he was already in that area of B.C on legitimate Senate business.

Mr. Bayne submitted that Senator Duffy’s expense claims encompassed by counts 3 through 20, all complied with the governing SARs provisions.  All activities or business were partisan or public or both and the “related travel” was expensed within the express SARs provisions “entitling” such activities to Senate financial resources (travel expenses).  There was no violation of the SARs, no breach of a SARs prohibition, no prohibited act of dishonesty or misrepresentation.  No partisan activities occurred during a formal election period or represented the private business concerns of Senator Duffy or his family.  If and where there was an aspect of personal family reunion it was combined with either or both public business and/or partisan activity not during a federal election.  There is no actus reus of fraud or breach of trust proven at all, much less beyond a reasonable doubt.  

Actually, the Senate rules permitted Duffy to go to B.C. on his own initiative on the taxpayer’s dime when conducting public business. He didn’t have to seek permission to do so.

Companion Guide to the Senator’s Attendance Policy 

(a)  Public business’ means all business carried on by a Senator for public purposes whether or not authorized by the Senate or the Government of Canada, and includes official business, representative business, partisan business and related travel, but does not include attending to one’s private concerns.

There are troubles with some legislation because they often have two meanings. I refer you to the expression; “but does not include attending to one’s private concerns.” This could me that if Duffy could attend to public business on a trip to Vancouver on the public’s dime, then he can attend to his family on that same dime. The second meaning is that if he is not attending to public business when he goes somewhere in Canada, he cannot attend to his private concerns such as visiting his family while doing so on the public’s dime if he is not conducting public business on that same trip.  

Partisan activities, an inherent and essential part of a Senator’s parliamentary functions, may be carried on anywhere in Canada, not just in Ottawa or the Senator’s province of appointment. They may take place coast to coast to coast and are “entitled” to Senate financial resources.  Partisan activities, public business, parliamentary functions that validly attract Senate financial resources can take place at any time, whether Parliament is in summer recess or Christmas recess.

  

Mr. Bayne submits that Senator Duffy’s expense claims encompassed by counts 3 through 20, all comply with the governing SARs provisions.  All activities or business were partisan or public or both and the “related travel” was expensed within the express SARs provisions “entitling” such activities to Senate financial resources (travel expenses).  There is no violation of the SARs, no breach of a SARs prohibition, no prohibited act of dishonesty or misrepresentation.  No partisan activities occurred during a formal election period or represented the private business concerns of Senator Duffy or his family.  If and where there was an aspect of personal family reunion it was combined with either or both public business and/or partisan activity not during a federal election.  There is no actus reus of fraud or breach of trust proven at all, much less beyond a reasonable doubt.  And, if the Crown alleges a marked and substantial departure from the standards of conduct expected of similarly situated officials, i.e. all other Senators, it must lead evidence in proof of that proposition, as Justice Belanger held in Radwanski,  There is no inculpatory “comparator” evidence (as Justice Belanger called it) of how other Senators interpreted and applied the “partisan activities” and “public business” provisions of the SARs that governed their legitimate access to Senate financial resources for travel.  Indeed, the only evidence before the court is exculpatory. It reveals that Senator Duffy’s travel expenses (and his overall expenses) were well within the normal range for all Senators; Ms. Proulx, the Senate Finance Director, agreed in her evidence that she never claimed that Senator Duffy’s expense claims were “inappropriate or out of line with the numbers.

Mr. Bayne concludes that what Senator Duffy did was reasonable, was recognized as reasonable by Senate policy, and was encouraged by Senate policy and violated no provision of the SARs. Combining personal connection to faraway family with important business happens all the time in life.  The Crown has led no evidence that the other 104 Senators did not regularly follow this practice.  The evidence actually strongly suggests that they would have because it was encouraged.  There is no evidence of fraud or breach of trust much less proof beyond reasonable doubt.

,I am not satisfied that the Crown has proven the accused guilty on counts 18 and 19 beyond a reasonable doubt.    Counts 18 and 19 are hereby dismissed.

As much as I would like to continue on with more of the allegations laid against Dufy, I just don’t have the time to do it since I am taking time off to proof read two of my books that are already in the publisher’s hands.

It is sufficed to say that Duffy was acquitted of all of the 31 charges. I would be remiss if I didn’t publically compliment Mr. Justice Charles H. Vaillancourt for his extremely well-written decision. It ranks, in my opinion with those decisions written by Supreme Court Justices.

At the same time, I have no hesitation in chastising the RCMP (Royal Canadian Mounted Police) who are the federal police in all of Canada and the provincial police in British Columbia.

They had the same documents that the court had and had they had their lawyers peruse through them, they would have come to the same conclusion that the judge did. They spent over a million dollars investigating Mr. Duffy and their results were worthless. If they were cognizant of the fact that the police are supposed to look at all the facts, even those that could prove a suspect as being innocent, Mr. Duffy wouldn’t have gone through what he had to endure and the taxpayers would be out the money he RCMP spent in their investigation and the money incurred with respect to the trial.

The prosecution was no better. They too had all the documents and if they weren’t so hell-bent on convicting Mr. Duffy instead of looking to see if he might have been innocent of all the charges, the trial would have been unnecessary.

Duffy’s acquittal doesn’t necessarily vindicate him.

We are led to believe that Mike Duffy didn’t charge the taxpayers thousands of dollars for personal trips all over the country, with Senate business thrown in. He didn’t saddle taxpayers with the expenses of a personal trainer as a “consultant” (who actually didn’t do any work) or charge the public for an “emergency” makeup artist or funnel $65,000 of public funds through a friend’s shell companies to avoid even the kind of scrutiny that let everything else he was doing pass. He didn’t claim travel expenses for the house in Ottawa he had been living in for decades and he didn’t secretly take $90,000 from the prime minister’s chief of staff to keep quiet about it all, or rather to lie about it all. 

All these things really happened.  The judge in deciding in Duffy’s favour concluded that there simply wasn’t enough proof beyond a reasonable doubt that any of these actions on Duffy’s part were crimes, or that there was any proof beyond a reasonable doubt that Duffy intended to commit any crimes. That is the way it should be. The judge gave Duffy every possible benefit of the doubt. That too is the way it should be.                      

Duffy’s defence was greatly assisted by the ineptness of the Crown since at every turn, the Crown declined to call evidence to contradict Duffy’s testimony. The Crown’s decision was based on the unreasonable supposition that Duffy’s testimony was sufficiently contradictory in itself or alternatively, immaterial. The burden of proof in all such cases is on the Crown, and the Crown in this case failed to fully discharge that burden.

We don’t convict someone of a crime merely because we suspect that he did something wrong, neither should we make the alternative mistake of supposing that because the evidence did not support a criminal conviction, nothing happened and nobody did anything wrong. Duffy’s defence, after all, was not so much that he did not break any rules, (as that there were no rules to break) or that they were unclear, or that they were not properly explained to him, or when all else failed that everybody else did it. 

It is more an indictment of the Senate in its sloppy ways it governs itself than it is exoneration of Duffy. If there were no rules to prohibit what Duffy was up to, there should have been, and if Duffy’s sense of what is appropriate personal conduct is “anything that is not expressly forbidden” then he is entitled to stay out of jail, and he is entitled to his expenses, and he is even entitled to sit in the Senate. However, in my opinion, the one thing he is not entitled to is complete vindication because the one thing that was not on his mind was the expenses he saddled the taxpayers with.

In my opinion, it seems to me that the best interest Duffy has in his mind is for himself and not for the taxpayers. Former Prime Minister Harper’s interests in putting Duffy into the Senate was so he could bolster the Conservative’s role in the Senate. As it turned out, Harper regretted that decision. Come to think about it, I think the majority of Canadian taxpayers also regretted electing Harper as the prime minister of Canada. The fact that he lost the election adds legitimacy to my opinion.

I am not sure what the future is for Mr. Duffy in the Senate if any, but when I learn what it is, I will update this particular article.