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Courtroom 33 isn’t just another Senate committee

Day 15: Don Bayne continues questioning of Senate staffer


 

Duffy Trial 20150420

More and more, as Sen. Mike Duffy sits at his desk in Courtroom 33, he is encircled by boxes, suitcases, binders of documents, as though he were becoming an exhibit in his own trial.

As though he were becoming his very own Rosebud.

He is increasingly a wooden boy. And though it’s Duffy who is, as defence lawyer Donald Bayne reminded us repeatedly today, facing criminal liability in this case, the action in the courtroom has moved away from the suspended senator and, inexorably, to the judge’s left—to Bayne and Nicole Proulx, and their slow-boil battle of wills.

Proulx, who was head of Senate finance during the period in question here at Duffy’s trial, has maintained that the Senate rules Duffy is alleged to have broken—one plank of the 31 bribery, breach of trust and fraud charges he faces—are clear, intelligible, eminently doable.

In his often aggressive, if not hostile, questioning of Proulx, Bayne has, meanwhile, suggested the rules are amorphous, ill-defined and hard to follow.

That Duffy has become more or less an inconsequential artifact in this, his own trial, is in keeping with the thesis Bayne has been at pains to develop over the last few days. Duffy has been caught, Bayne has maintained since his opening remarks three weeks ago, in a trap set by scheming operatives in the Prime Minister’s Office, by rabidly partisan Tory senators and, even, he seemed to say today, by Senate administrative officials acting in cahoots with the RCMP.

As he did on Friday, Bayne enumerated the meetings, telephone calls and warm email exchanges Proulx engaged in with RCMP officers working this case, and with the Crown lawyers, Mark Holmes and Jason Neubauer, now arguing it in court.

“Hi Nicole,” Bayne read aloud from an email sent by Sgt. Greg Horton, the lead RCMP investigator, to Proulx. “What do you call him?” Bayne demanded to know of Proulx. “Greg,” she replied. “Hope you are enjoying your holidays,” she signed off in another email to Horton. “Hope this will be helpful,” she said elsewhere.

Cozy.

By the end of the day, Bayne was building a grander narrative upon that morning testimony, one involving a mysterious, ostensibly damning, Senate audit that Bayne sought to work into his cross-examination of Proulx this afternoon, but which an unseen—okay, non-present—Senate lawyer is attempting to keep from the public by claiming parliamentary privilege. Holmes raised this privilege argument in the face of Bayne’s probing of Proulx and her “reaction” to this document, which neither Holmes nor Bayne has seen.

The audit looked at the residency status of all senators, back when the Duffy matter first began generating news two or three years ago. That discussion, if only we could see it, would go to the heart of a central question in Duffy’s trial: where we should consider he was really living while he was a senator for Prince Edward Island in good standing, and what right he had to the travel expenses he claimed while staying at his long-time address in Ottawa.

It’s a question that created quite a bit of the heat—and a lot less of the illumination—in court today.

Bayne made the case that Proulx is a defensive witness, eager to put Senate administrators and her role as head of finance in the best light. (She holds an MBA from the University of Ottawa and is now the Senate’s chief corporate services officer.) He quoted from discussions she’d had with the RCMP and Crown lawyers on April 19, when the trial was already at full tilt, in which she complained that Senate administrators were getting portrayed in court, and by the media, as rubber-stamping bureaucrats who never bothered to follow up on how senators spent taxpayers’ money.

“I was always told that I was not on trial,” Proulx told Bayne.

“You’re not,” he shot back. “There’s only one person here whose liberty is at stake.” He pointed at Duffy.

Bayne pointed out that, while Duffy remained a senator in good standing, finance officials routinely took a senator’s signature, and claims that expenses were for “parliamentary functions,” at face value, looking no further. “And you don’t say that’s rubber-stamping?” Bayne asked Proulx.

At one point, with Proulx out of the room due to an objection raised in court, Bayne tried to put a discussion of several independent reports on the Senate before the judge. Bayne said of the former head of finance: “She thinks there are clear rules. The auditor general didn’t, Deloitte didn’t, KPMG didn’t.”

Meanwhile, it seems clear that Bayne is testing Proulx’s patience. While Mark Audcent, the former Senate law clerk, and Proulx’s colleague for years, appeared game to walk down any path Bayne led him during his cross-examination—as a sort of intellectual curiosity—Proulx looks nonplussed in the extreme.

“That’s what it reads,” she’d tell Bayne again and again, as he took her on a voyage of Senate paperwork.

Perhaps this was why Bayne seemed eager to remind her this was a criminal trial, and not just another gathering of a Senate standing committee.

Court reporter Nicholas Köhler on the Duffy trial


 
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