From the Duffy trial, a reporter's letter to his editor

Day 31 in Courtroom 33: Nick Kohler writes to his boss

Suspened Senator Mike Duffy arrives at court in Ottawa on Thursday, June 4, 2015. THE CANADIAN PRESS/Sean Kilpatrick

Suspened Senator Mike Duffy arrives at court in Ottawa on Thursday, June 4, 2015. THE CANADIAN PRESS/Sean Kilpatrick

Dear Alison,

You are my boss. I am writing you this post, which make no mistake is the latest installment in a series of my dispatches from Courtroom 33, where Mike Duffy is on trial, in order to break up the monotony, painful for all involved, of following a process where the shortest distance between A and B is an infinity of detours.

Dear Alison, I repeat: 31 days in Courtroom 33, at Ottawa’s Elgin Street courthouse, where the suspended senator faces 31 charges of bribery, breach of trust and fraud, feels nowhere closer to untangling the truths and fictions of Duffy and the senate spending scandal.

It’s like we are trapped in a hermetically sealed jar, where outside truths like auditor generals reports, the weather, the movement of the sun, hold no sway.

Where time stands stock still, Alison—I was going to say “still stands stock still,” going back to the great Donald Bayne’s efforts, via the instrument of a May 4 voir dire, to arrest the Earth’s progress mid-spin. But in the absence of time, adverbs have no function.

They pump frigid air into Courtroom 33 to keep us awake. Every day is a sweater day. Its June, Alison.

    Okay, Alison, you can look at it two ways. On the macro level, this trial is an epic of Dickensian scope: exactly a week ago we heard from Clifford Golden Dollar, the man who installed pipes in the attic of Duffy’s cottage in Cavendish, P.E.I., and who spoke the beautiful, idiosyncratic English of an old-school Islander. Then, today, we hear from Peter Doody, a lawyer who once represented former prime minister Jean Chrétien in the Gomery Commission probing the sponsorship scandal, but who came this morning to engage in a heady debate over the scope of parliamentary privilege—what the red chamber can and can’t keep secret.

    From Dollar to Doody, Alison. That is what you call breadth.

    On the micro level, it’s also what you call crazy-making.

    They marched in, these lawyers, and got themselves settled in front of Justice Charles Vaillancourt. That sidelined Bayne, Duffy’s defenceman, and Crown prosecutor Mark Holmes (Holmes’s partner, Jason Neubauer, stayed away—smart man).

    In their place was Doody and that parade of other lawyers. I’ll get to them later.

    They were all set to argue over an internal Senate report prepared for the upper chamber three years ago by that body’s chief internal auditor, Jill Anne Joseph. No one really knows what’s in the report: the Senate is claiming parliamentary privilege over it, so it’s still all hush-hush.

    But by all accounts it seems to suggest there was a lot of internal confusion about what “primary residence” means for Senators—which is important, because Duffy claimed tens of thousands of dollars in travel expenses just for living in Kanata, his home base for years.

    That issue is part of why we’re here, so the report sounds useful.

    Doody—yes, Alison, that really is his name—argued first. He spoke real fast about a lot of things I did not understand. I tried to write as fast as he talked, but it was hard. Made me think of David Copperfield learning shorthand—”the unaccountable consequences that resulted from marks like flies’ legs; the tremendous effects of a curve in a wrong place…” etc. etc.

    Now I can barely read what I got down. Here’s my best guess at what Doody said:

    Hey, this internal Senate document could help show how this guy on criminal trial is innocent. The report may never have been actually tabled in the Senate, and we’re not sure if it came up in an in-camera meeting either. It’s got nothing to do with the Senate’s core business, which is to legislate and hold the government to account. So the privilege it’s claiming here is bogus, because lifting it on this particular document would have no impact on its function. And anyway, even if it were covered by privilege, the Senate has waived it by providing the information contained in the document to RCMP investigators.

    Doody convinced a lot of people in the courtroom. But then the Senate’s man, Gowlings lawyer Maxime Faille, rose. He’s a trim guy who can put a sentence together and then, like a conductor’s baton, use it to command a room. He even moves his hands like a conductor’s.

    Faille changed a lot of people’s minds. How he put things was like this: Hey, this has nothing to do with Duffy’s guilt or innocence. It has everything to do with parliamentary privilege as fundamental to the workings of our democracy—so foundational to the way our government functions that it’s easy to forget its importance. Faille was here to argue the principle of the thing. Privilege allows our elected representatives and the admin people who support them to talk, deliberate, come to decisions, without fear of liability, defamation or other interventions of the courts. It ensures freedom of speech. Privilege is therefore critical to the separation of the branches of government—the legislative from the executive from the judicial—because it permits those branches to get on with things independently of each other, as checks and balances should.

    While earlier it had been easy to believe that the Senate wanted to keep an embarrassing report secret, Faille suggested he was here merely to beat back an incursion from a meddlesome court, and that otherwise he and the Senate couldn’t care less.

    Where does this leave us, Alison?

    Well, it would be nice to hear some evidence again. We were going at a good clip this week—good for, er, Duffy time. But Faille will be back tomorrow to finish up.

    There really is no telling when this thing will end.

    Yours truly,

    Court reporter Nicholas Köhler on the Duffy trial

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