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.
“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.