For Donald Bayne, it was like trying to win an argument with Rain Man about how many toothpicks had just spilled across the floor.
Dustin Hoffman was going to win every time.
Bayne, the criminal defence lawyer representing Mike Duffy, spent the day in Courtroom 33 grappling with Mark Grenon, a federal government forensic accountant retained by the RCMP for Project Amble, a probe of three senators—Duffy, Patrick Brazeau and Mac Harb.
Grenon had just spent the last two days in the witness box leading court through the ins and outs of Duffy’s financial life, including a $90,000 payment Nigel Wright made to the suspended senator in 2013.
As a brief interlude, let’s just underline here the upshot of the day’s proceedings—that court will not return tomorrow as planned, and that it will reconvene on Aug. 11, when Wright, former chief of staff to Prime Minister Stephen Harper, will arrive in the witness box.
In the flesh. The show we’ve been waiting for.
Even if this is supposed to be the trial of Duffy, charged with 31 counts of fraud, breach of trust and bribery, it is really, all of us hope, a chance to get a peek, through the prism of Wright, into the inner workings of the tightest of closed shops: Stephen Harper’s Prime Minister’s Office.
That’s still a matter for the future, though.
For now, let’s turn to Grenon, whose testimony today completed a three-day voir dire—a trial within a trial—aimed at determining whether Grenon himself can be considered an expert witness for the purposes of this trial, and then how much of his forensic accounting material Justice Charles Vaillancourt will permit as evidence.
In his responses to Crown prosecutor Jason Neubauer’s meticulous questioning, Grenon demonstrated an astonishing command of that material, all the more impressive given its nature: reams of numbers, whole libraries of phone-book sized collections detailing Duffy’s personal and corporate banking records, credit card statements, etc.
Bayne told court straight up he wouldn’t challenge Grenon on the technical aspects of his work, which for the three senators in total took 704.25 hours, at an equivalent value of $95,843 in billable hours (equivalent because Grenon, a civil servant, makes a salary).
Grenon estimated that 60 per cent of these hours were dedicated to Duffy. It was impressive to watch Bayne execute a thumbnail calculation of his own on how many hours that meant he’d spent on his client individually—420, Bayne figured.
Grenon later corrected him: it was 422.
Luckily, Bayne scored the few points he took off Grenon today—and they were not insignificant—on philosophical issues.
First, he tried to portray Grenon as a full-fledged member of the RCMP’s investigative team, rather than as an impartial expert, whose work mandates framed the accounting issues before him as dilemmas in proving Duffy’s guilt.
Grenon argued that his reports could be of as much use to the defence as the Crown.
“We can test that hypothesis,” Bayne countered.
Here we arrived at the second area of difference between Bayne and Grenon.
Noting that one of Grenon’s mandates involved identifying suspicious travel claims filed by Duffy with the Senate, Bayne asked if Grenon knew anything at all about the Senate rules around what constitutes public or parliamentary business. Bayne has, over the course of this trial, produced good moments demonstrating a lack of clarity in those guidelines, and how they appear to allow a good deal of partisan activity.
Grenon conceded that he knew enough about the rules to know he didn’t know them very well.
“You could never give evidence of an opinion about whether or not something was Senate business—that’s for the judge,” Bayne told Grenon.
“Correct,” Grenon replied.
Bayne went on to poke holes in the idea that Genon’s numbers had much to tell the court at all.
“The punchline of all of this work,” Bayne said a little later, is to add up the totals of Duffy’s various expense claims, generating a grand figure of $493,193.20.
How does that help His Honour determine whether Duffy’s expenses fell within Senate rules, Bayne wanted to know.
“It’s just a number,” he said. “The number is the number.” Who cares?
Bayne’s point here was that the numbers in and of themselves are not probative—they possess no magical power to communicate the truth of this matter.
Grenon throughout remained a Jedi knight of cool—imperturbable, absolutely confident in his number findings, and yet perfectly at ease with their limitations as well.
“The number doesn’t answer the question of whether it’s Senate business or not,” is how Bayne put it to Grenon.
“That’s for His Honour to decide,” Grenon agreed.
Much of the rest of the day was spent in a competitive shell game exercise, where the prosecution and defence contested the different ways dollars could have flowed in and out of various parking places—Duffy’s various accounts, his wife Heather’s, Duffy buddy Gerald Donohue’s companies—and what meanings lay therein, clean or dirty. They argued over whether Duffy’s spending and use of credit was unsustainable, or whether he merely conducted his financial dealings the same as any other Canadian (Bayne even cited Statistics Canada data to this effect).
The evidence was often thick, and digit-heavy, and news reporters gathered during breaks in the proceedings to puzzle collectively over the numbers and what they meant. News reporters really ought never to do this. That is how bridges collapse.
Now, we were supposed to return to court tomorrow, but Vaillancourt asked for written submissions on the Grenon voir dire, and the Crown had little else to put before him for tomorrow. The prosecution made up for that, in a sense, by announcing Wright’s first day on the stand.
So all we can do is wait. Now it is all about Wright and his arrival on Aug. 11.
What will the Crown make of their witness? What will Bayne do to try and divert that narrative to favour Duffy? It will be a long mid-summer.
Court reporter Nicholas Köhler on the Duffy trial
- Day 1: Mike Duffy talked for a living. On Monday, he spoke six words.
- Day 2: Kafka meets Frank Capra in Courtroom 33
- Day 3: The PM is just a girl he used to know
- Day 4: The subject of honour and the genie of Cavendish
- Day 5: Mike Duffy, patron saint of the good ol’ days
- Day 6: Oversight in Canada’s Senate? There’s no such thing.
- Day 7: Plucking the wings off a visitor from fairyland
- Day 8: The Genie of Cavendish, raining contracts like manna
- Day 9: All the Senate’s a Hollywood soundstage
- Day 10: Ottawa stitches Canada together. Mike Duffy did his part.
- Day 11: The mysterious #duffytrial comes briefly into focus
- Day 12: Nicole Proulx muddies #duffytrial with clarity
- Day 13: Hubris in Courtroom 33. Wait, never mind, it’s gone…
- Day 14: The unfilmable drama: Duffy’s defence takes on a Senate staffer
- Day 15: Courtroom 33 isn’t just another Senate committee
- Day 16: A pox upon this unshakable, inexplicable Senate
- Day 17: A gothic novel plays out in Courtroom 33
- Day 18: Donald Bayne relishes the boredom of his stage
- Day 19: Snippets of human drama, portals into a great unwritten novel
- Day 20: The flare that snagged Donald Bayne
- Day 21: ‘Why not cover a real trial?’
- Day 22: An improper brand of magnanimity
- Day 23: A judge asks for busywork amid a Duffy trial standstill
- Day 24: A rogues’ gallery marches through an otherwise grey day
- Day 25: A father and son enliven the holy ghost of the Mike Duffy trial
- Day 26: The Mike Duffy Tour of Canada
- Day 27: The Mike Duffy trial stays too long at the fair
- Day 28: Mercer the Guileless takes the stand
- Day 29: A veteran assistant on the Hill: Duffy’s latest collateral damage?
- Day 30: How to get bills paid on Parliament Hill
- Day 31: From the Duffy trial, a reporter’s letter to his editor
- Day 32: Duffy in the witness box: Repeat it enough and it may come true
- Day 33: Parliament Hill’s very own Hogwarts
- Day 34: The forensic accountant dissects Duffy’s books
- Day 35: The spectre of Nigel Wright finally swoops into Courtroom 33