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An acquittal for Duffy, an obliteration for Stephen Harper’s PMO

In setting Mike Duffy free, the judge used his incendiary decision to rebuke Harper’s inner circle—and give Canadians a lesson in the justice system


 
Senator Mike Duffy leaves the courthouse after being cleared of bribery and fraud charges in Ottawa, Canada, April 21, 2016. (Chris Wattie/Reuters)

Senator Mike Duffy leaves the courthouse after being cleared of bribery and fraud charges, April 21, 2016. (Chris Wattie, Reuters)

Have we entered the era of the incendiary judge’s decision in Canada?

Last month, in Toronto, Justice William B. Horkins, ruling in the sex assault trial of former CBC Radio personality Jian Ghomeshi, delivered a decision that, apart from acquitting Ghomeshi, was a brutal rebuke to the three witnesses who testified in the matter.

Speaking of one of the witnesses, who only at the last minute revealed to the court the existence of a sexual relationship with Ghomeshi that continued beyond the alleged assault, Horkins said she “was clearly ‘playing chicken’ with the justice system.” He made similar no-nonsense assertions about the credibility of the two other women who testified from the witness box—that one had in cross-examination “been exposed as … willing to withhold relevant information from the police, from the Crown and from the court,” and that the other demonstrated “a failure to take [her] oath seriously and a wilful carelessness with the truth.”

Now, in acquitting Sen. Mike Duffy of all 31 fraud, breach of trust and bribery charges facing him, Justice Charles Vaillancourt delivered a similarly blistering critique of the Crown’s handling of this politically charged case. Others were in his sights too. His ruling attacked the manoeuvrings undertaken by staffers in Stephen Harper’s Prime Minister’s Office as they sought to limit the fallout surrounding Duffy in 2013, the height of the Senate expenses scandal.

In essence, Duffy had been accused of claiming expenses as a senator from Prince Edward Island on “travel status” in the National Capital Region, where he’s actually lived for decades; for claiming travel expenses as a parliamentarian while gallivanting around the country on personal or partisan business; for funnelling Senate money through private companies owned by a friend, and thereby avoiding Senate scrutiny in his dispersals; and for accepting a bribe to repay his bad expenses once they came to light.

Vaillancourt hammered the Crown again and again, asking why prosecutors Mark Holmes and Jason Neubauer failed to call key witnesses whose evidence might have contradicted Duffy’s “straightforward evidence,” and why Holmes in particular failed to address key issues before the court—i.e., Duffy’s three bribery charges—during his cross-examination of Duffy.

The judge delivered an almost subversive indictment of the Senate as it had existed during the years at issue in the Duffy matter, then told court he was heartened things had changed, that the Senate was no longer as it was.

He went on to describe “the plotting” revealed in email exchanges between Nigel Wright, Harper’s one-time chief of staff, and other PMO operatives as “unacceptable” in “the context of a democratic society.”

In the face of this assault, Holmes and Neubauer and Sgt. Greg Horton, the lead investigator in the matter, fairly withered in their chairs—and three years of diligent police and prosecution work evaporated before the eyes of the gathered spectators and journalists. This was an almost unparalleled spanking, and they were chastened.

Vaillancourt, in his grandfatherly way, seemed on fire as he led us through the ins and outs of his decision, and that was particularly true as he began his exploration of Duffy’s three bribery charges, and the role the PMO played, in Vaillancourt’s view, in forcing Duffy to accept Wright’s $90,000. As in the case of Horkins, the fuel within that fire appeared to be his perception that the public’s understanding of the justice system has grown weak, needs an elemental refresher, and that maybe the Crown has learned to exploit this erosion of the public’s trust in the criminal justice system. So Vaillancourt began with an odd homily, one it’s worth quoting at length:

“Prior to embarking on a count by count analysis of this case it is worthwhile to hearken back to some basic principles that are at play in all criminal cases. I would like to relate an interesting encounter that I experienced near the commencement of this trial that demonstrates the difference between the legal presumption of innocence and the application of that presumption by many citizens. I was returning to the courthouse after lunch break when I heard a man who was soliciting funds from passersby say, ‘Sir! Sir!’ I stopped and began to check out my monetary situation. However, the stranger did not ask me for a financial contribution. Instead, he asked me if I was connected to the Duffy trial. I advised him that I was. He then inquired whether I was counsel. I advised him that I was not, but I did tell him that I was the judge hearing the case. Without missing a beat, my newfound friend enthusiastically stated, ‘Throw him in jail.’ “

At this, members of the public and the reporters gathered in the courthouse laughed—Vaillancourt was telling a story, and acting out the parts of his two characters, the robe-less judge back from lunch, the news-junky panhandler.

It should be noted that Heather Duffy, sitting to her husband’s right, did not laugh. Indeed, Duffy, wearing a leprechaun-green tie, could have faced a long jail term.

Vaillancourt continued:

“The aforementioned exchange highlights two important aspects of Sen. Duffy’s trial. Firstly, the scenario illustrates the public awareness and interest in these proceedings. Secondly, and more importantly, the exchange draws attention to the overarching touchstone principle of criminal law in Canada—namely, that everyone is presumed innocent until the Crown proves them guilty beyond a reasonable doubt. Although the stranger drew my attention to the principle, his enthusiastic response highlighted a contrary position to the presumption of innocence. I think it is fair to say that many people may share the belief that when someone is charged with a criminal offence, they are guilty. This is not the law of the land.”

With dispatch, even with a little glee, Vaillancourt proceeded to dismiss one batch of charges after another, and in doing so appeared to read from the defence’s playbook. He sided over and over again with the defence, saying at bottom that Duffy could not break Senate rules that did not exist, could not have escaped oversight the Senate never undertook and that whatever vague rules did exist, Duffy had operated within them.

His glee was nowhere more vivid than when the PMO became his focus.

In Vaillancourt’s handling, the brute strength of the PMO and the power of the state pursuing prosecution of an individual on criminal trial blurred. The PMO had conducted itself with ruthless efficiency with respect to Duffy, and this was a problem; the state, Vaillancourt suggested, should never be allowed to do likewise in its criminal prosecutions.

Vaillancourt entitled the portion of his ruling dealing with the bribery charges “Peering through the looking glass”: it was a signal that the conspiracy theories Duffy’s defence lawyer Donald Bayne had indulged in during the trial, and which the Crowns objected to again and again—arguing they were not relevant to the charges at hand—were precisely the narrative Vaillancourt accepted.

Much of the evidence Bayne had drawn from involved the email exchanges between Wright, his PMO minions, and Duffy, who found himself at the mercy of a scheme in which he copped to claiming bum expenses, committed to repaying the taxpayer, then agreed to secretly receive private funds from Wright, a wealthy man who wouldn’t miss the cash.

“The email traffic that has been produced at this trial causes me to pause and ask myself, ‘Did I actually have the opportunity to see the inner workings of the PMO?’ ” Vaillancourt asked himself. “Was Nigel Wright actually ordering senior members of the Senate around as if they were mere pawns on a chessboard? Were those same senior members of the Senate meekly acquiescing to Mr. Wright’s orders? Were those same senior members of the Senate robotically marching forth to recite their provided scripted lines? Did Nigel Wright really direct a senator to approach a senior member of an accounting firm that was conducting an independent audit of the Senate with the intention to either get a peek at the report or part of the report prior to its release to the appropriate Senate authorities or to influence that report in any way? Does the reading of these emails give the impression that Senator Duffy was going to do as he was told or face the consequences? The answers to the aforementioned questions are: YES; YES; YES; YES; YES; and YES!!!!! The political, covert, relentless, unfolding of events is mind-boggling and shocking.”

Before Vaillancourt showed up to begin delivering his ruling, Bayne had done the rounds, approaching each member of the prosecution and pumping their hands. He coupled that gladhanding with the most winningest smile. You’d think he already knew what was in the offing.

After Vaillancourt adjourned, Holmes and Neubauer rose from their seats, utterly defeated. Reporters asked if they might speak about the decision outside.

“No thank you,” Holmes told them.

And Duffy? In a couple of weeks, he may well march back into the Senate vindicated, a victory stroll for the ages. Oh what pomp and spectacle that will be: Mike Duffy back on the 11 o’clock news, not subject of a prosecution, but a senator in good standing again. He’s always been a master of the reversal of fortune—revolutions as quick and complete as the records he used to spin as a youthful DJ in P.E.I.


 

An acquittal for Duffy, an obliteration for Stephen Harper’s PMO

  1. This is awesome. Through Harper’s reign, the willingness of some lawyers and judges to remain steadfast about upholding legal principles was really heroic.

    But I doubt very much if Duffy will be taking a victory stroll, or putting on “pomp and spectacle”. This was probably extremely traumatic for him and his family, financially ruinous, and frightening. Acquitted or not, spending years tied up in court is hardly a cakewalk. The media — and the public — should be more aware of that, and drop the tough guy act when it comes to the justice system.

    • This whole Duffy story was created by the LBC – Liberal Broadcasting Corporation (formerly the CBC) and then the other papers followed the story which turned out to be over nothing.

      But the CBC got what they wanted….the Liberals in power and they got the payoff – hundreds of millions in new funding for their political machine.

      • The whole Duffy story was created by a spin-happy PMO which did things it should not have done. Among other curious things: If Duffy was on trial for taking a bribe, why wasn’t Wright on trial for offering one?

        Frankly, the RCMP do not come off well in all of this. I’ve often wondered if Harper’s retroactively making legal RCMP activities that were illegal when committed was quid pro quo for their deliberately ignoring PMO wrongdoings on this file.

  2. In the fourth paragraph the phrase is supposed to be “… in his sights too.” NOT “… in his sites too.”

  3. What a tremendous waste of money. What a useless dog and pony show. Millions upon millions that could’ve been used to help people that really need help. No matter what this judge said, most people will think of Duffy as guilty as charged. I do. The senate is nothing but a cesspool reeking of the stench of privilege and corruption in my mind, and it is time to get rid of it.

    • …which makes the judge’s point about society’s utter failure to grasp the concept of innocent until proven guilty.

  4. I wonder if we’ll hear any retractions from the Canadian media who made a story of this for 2 and a half years? (of course not)

    If anything, at least this case managed to put the Kibosh on the extravagant expense accounts of the Senate.

    We’re watching.

    • For many of us, James, the story was not Duffy as much as the PMO’s activities. The judge proved we were right in our suspicions. I have no great love for Duffy, but when it comes right down to it, the wrong person was on trial.

  5. A lesson in judicial process. Even though what was done by the senators was wrong in your and my view, that does not make it a criminal offense. In the absence of clear rules, bylaws and processes there could be much that does not stand the smell-test, but it cannot be enforced by the courts.

    The media is now shifting its attention to the PMO and Stephen Harper, who of course is the media’s old foe. I doubt the rules were better under Chretien, Mulroney, Trudeau Sr, etc.?? Are they better today under Trudeau Jr?

    The media has given miles and miles of column space to this issue. Is there any hope that anyone will put the searchlight on the way people have been judged without legal basis? Probably not…

  6. Not criminal but also not ethical. All of this should return our gaze to the $520000+ owed by a number of Duffy’s fellow senators. The Senate must have written, itemized criteria for expense claims before they are claimed and open scrutiny after they are claimed. Every other business in Canada with 105 employees has that.
    This kind of behaviour must be controlled internally not only for everyday ethics but to avoid unnecessary recourse to the Criminal Code.

  7. OK, I heard the judge…What he said was the PMO was over stepping themselves to do what they thought was “right” and should have thought more about the legal process.

    The PMO followed the bad reporting from the CBC and assumed the charges were legit. So overstepped themselves to make it go away, that is why the chief of staff was terminated.

    • of course. when it doesn’t go their way, the cbc is to be ignored and vilified.

      are you honestly suggesting the pmo sat around all day watching or listening to the cbc in order to decide what to do about duffy?

      the pmo’s problem began with the revelation in april 2014 of the wright cheque to duffy written two months before. the story was broken by th globe and mail’s robert fife.

      are you saying the cbc was sending secret messages in their news reports that only the pmo could detect? it wasn’t the cbc deciding the chages were ‘legit’. it was the cbc deciding the expenses were ‘inexplicable to the base’ and the bribe would simply look bd. THAT’S what the judge said.

      funny how the cbc is the source of all even, but the font of wisdom and tactics when the base needs anyone to blame but the haarper pmo.

      • errr. ‘it was the pmo deciding the expenses were ‘inexplicable to the base’.

  8. The actions of the Harper Government were to clear to anyone to anyone who was paying attention.

    This ruling and the Judges comments expose it to more people who had not been following it closely..

    For a wider picture,read Party of One by Michael Harris which reveals the Harper Government in all its paranoia, deceit, slipperiness and arrogance .

    • Kelper wrote:

      “For a wider picture,read Party of One by Michael Harris which reveals the Harper Government in all its paranoia, deceit, slipperiness and arrogance .”

      Kelper, MIcheal Harris has always been, and remains, a victim of extreme HARPER derangement syndrome. Harper could find the cure for cancer, aids, Ebola, and rabies…..and Harris would accuse him of using lab animals because of his cruelty.

      Get serious.

      • And some people would defend Harper and call HIM the victim even if convicted on overwhelming evidence for some odious crime. The truth is somewhere in the middle. Though I think, where the PMO is concerned, the judge only scratched the surface.

  9. Questions for the reporters and editors of news organs who joined the “get Duffy” attack when the story first broke: if it was so obvious to the judge that what Duffy was doing was not illegal, how come it wasn’t equally obvious to your reporters at the time? Or if it was, why didn’t you say so? And what changes will you now make to your polices and procedures to minimize your chances of repeating such a fiasco and having to eat yet more crow and seeing public trust in your competence reduced even further?

    Tim Cunningham

    • Tim,

      This was never about Duffy, or expenses. I think it’s pretty clear that the media focus was all about making Harper look bad.

      Mission accomplished.

      Now they will focus on whomever takes over as lead for the Conservatives or NDP, but for now they will write about Pallister.

      No one will be surprised.

      • Have you no acquaintance with the facts?
        This was a judge speaking. You can’t buy him off for political ends.

      • So, would the lesson learned be that the chief of staff should have been less concerned about image control (hence the self-sacrificial act of a personal $90,000 cheque) and more about communicating plainly what was going on? Perhaps take advantage of some lateral thinking and use it as a force for reforming the Senate, and be less immobilized by fears of whoever it is that may be out to get them?

    • Insiders like Don Martin and Andrew Coyne and others seem to be in total denial and can’t face what the judge said, which of course is as devastating to the Ottawa media as the PMO and Senate, although the MSM is not actually mentioned in the judgement. It’s implied and obvious.
      Sad day for journalism when reporters and pundits become complicit in destroying one of their own even they didn’t like him or respect him.

    • Yes, the media has been very disappointing lately, that is, the last four years or so. They seem guided by whatever hysteria has gripped social media. Even last night, the At Issue panel continued to belabor the same old axes, castigating the judge for stepping out of the line as set by them by commenting on the Prime Minister. Someone pointed out, a lawyer maybe, how Duffy had the full force of the state brought on him. Four arms, I think they said, RCMP, prosecutor, Prime Minister and the Senate, if I remember correctly. Thank goodness there’s still a judiciary that understand the gravity of that situation, because nobody — nobody — in the mainstream media was willing to step up and question that. Not the CBC, MacLeans, Globe and Mail — nobody that I can think of. I am thrilled every time Donald Bayne, this judge, Marie Heinen speak up — whatever any of them say, I’m hanging on every word. Because it’s really troubling what’s happened to journalism lately, and we need to be reminded that we’re not here to gang up on each other, and they’re not here just to report the blow-by-blow, and insist that the victim had it coming.

  10. The media let us down. They joined the PMO in trying to destroy Duffy, spending months humiliating and ridiculing him.
    But many had been acquaintances and friends, and they knew the truth about the rogues in the PMO, and the basic fact it took a respected neutral judge to say, Duffy doesn’t have a criminal bone in his body. Fool, buffoon, joker, big ego, but not a criminal. The media knew that. They failed. Shame.

    • A lot of the media accounts I read – including many on this site – were highly critical and suspicious of the PMO and their role in the whole affair. In fact, a lot of CPC defenders thought the media were out to “get” Wright, Harper & Co. Kept on saying “nothing to see here” and that “Wright was only trying to pay back what Duffy took” – gladly throwing the Duffster under the bus to save the party any embarrassment and trying desperately to keep the press from sniffing around their party and the PMO.

      • Ottawa press saying Duffy got off, not because he wasn’t guilty, but because the Crown was incompetent.
        Today (sat) Bayne is saying he had cross examinations ready for all their potential witnesses including Harper. The Crown didn’t call them and do other crosses because they knew they had NO case, and would expose more weakness by calling more witnesses.

        • Duffy got off because the rules were far too lax. The PMO should have focused on changing the rules – agreeing there were problems, then actually DOING something about them – rather than trying to scapegoat Duffy.

          The big problem for the PM, though, was Duffy – by any sensible interpretation of the need to be a resident of the province you are appointed to represent – should never have been named a PEI Senator in the first place. That alone made the PM look bad, so everything they could think of to divert attention and distance themselves was done. A good bit of what the PMO did was definitely unethical and quite possibly illegal.

          What it all boils down to is that – as foolish and ill-advised as some of Duffy’s behaviours were – the wrong person was put on trial. And That it all unfolded as it did really brings into question the behaviour of the RCMP and prosecution, and the administration of justice, in all this: How could Duffy be tried and Wright not, when the whole bribery bit stems on them as co-conspirators?

  11. This was perfect.

    Duffy was appointed after years of “journalism” where he made sure he echoed CPC talking points (anyone remember how often he said “unelected, unaccountable, liberal dominated senate” on his talk show?, a phrase he stopped using once it became a conservative dominated senate). He played that tape of Dion over and over again during the 2008 election, which lead to his appointment after the election – fortunately for him some months before his replaying of that tape was found to violate journalistic ethics.

    In short, he helped bring Harper up.

    And then he helped bring him down.

    It is rare to find two people who deserve each other more.

  12. Firstly, it was Ghomeshi and, now, it is Duffy. Two powerful court cases that failed, and there appears to be no investigation in the Justice Minister’s office regarding qualifications of crown attorneys (Perhaps I am ‘jumping the gun’).
    Having said that, some should be reminded of the hundreds of thousands of tax payers money, now, residing in the pockets of members of the Senate and their attorneys, et al.

  13. The Bay Street “Wonder Boy” Nigel Wright DOES NOT GIVE AWAY HIS OWN MONEY! Not a single dime came out of Wright’s pocket!

    It would be a simple matter of Nigel Wright INVOICING the “Conservative Fund of Canada” account (the Conservative Party’s – taxpayer-subsidized war chest) multiple times for some phoney “Financial Consultant Fees” to accrue back the $90K. CPC treates that Fund’s coffer as their private “Honey Pot.”

    OR, had the media called out Harper Conservative Senator Irving Gerstein, they would have found it was HE who arranged for cash-under-the-table from rich party backers which found its way into Wright’s bank account as Gerstein could not hide the $90K on the CFC books.

    Are there any conversations between Conservative Senator Irving Gerstein (Harper’s bagman) and the PMO about Nigel getting paid back from the “Conservative Fund of Canada” — the federal party’s war chest Gerstein once chaired.

    http://www.huffingtonpost.ca/social/MyTake/mike-duffy-nigel-wright-unanswered-questions_n_3314315_254934263.html

    -00-

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