The Mike Duffy Decision: Index to the Judgment

***** This is an unofficial index to the Decision and was not prepared by the Ontario Court of Justice or the legal publishers. Numbers refer to the paragraph numbers in the written decision of Mr. Justice Charles Vaillancourt available on the internet.

  1. Introduction and Fundamental principles:
    a) Presumption of innocence. 3-30.
    b) Principles re: Reasonable Doubt, Burden of Proof and Credibility. 9-11.
  2. Approaches taken by counsel: 12.
  3. Credibility issues relating to Senator Duffy. 15-69.
  4. General Background of Senator Duffy. 70-71.
  5. Appointment to the Senate. 72-75. Legality of his appointment not what trial about.
  6. The Senate as an Institution. 76. Reform of Senate not what trial about.
  7. Primary Residency Claim (Counts 1 and 2. 77-224.
    a) charges against Mr. Duffy. 77.
    b) crown’s position. 78-84.
    c) what do we know about “residency”? 85-94.
    d) what do we know about the property in Cavendish? 95-129.
    e) defence position. 130.
    f) Duffy’s connection to PEI. 131-135.
    g) Duffy’s reliance on representations of key authoritative officials intro. 136.
    h) Prime Minister Stephen Harper. 137-141.
    i) Senate officials. 142-144.
    j) Prime Minister’s Office. 145.
    k) Senator LeBreton, Senate Leader. 146.
    l) Primary Residence Declaration. 147.
    m) Application of Advice. 148-150.
    n) Senator Tkachuk. 151-152.
    o) Duffy’s Conclusion re: Primary Residency. 153.
    p) Duffy’s Efforts to upgrade PEI dwelling. 154-156.
    q) The Duffys’ Financial State. 157-168.
    r) Additional evidence negating any criminal mens rea. 169-182.
    s) No proof the Actus Reus. 183-211.
    t) The Constitution Act 1867. 184.
    u) SARS provisions. 185-187.
    v) The Declaration/designation form. 188.
    w) The 22nd Report of the Standing Committee on Internal Economy. 189.
    x) Mark Audcent. 190-192.
    y) Other Senate Guideline Documents. 193-195.
    z) Nicole Proulx. 196-197.
    aa) Paul Belisle. 198.
    bb) Speaker George Furey. 199-204.
    cc) Other statutory provisions relating to definition of residence. 205.
    dd) Income Tax Act. 206.
    ee) Significance of Definitions or Lack of Same. 207.
    ff) Subsequent change in policy and forms. 208-209.
    gg) No evidence of departure from conduct of other Senators. 210-211.
    hh) Justice Vaillancourt’s Conclusion. 212-224.
  8. Travel Expense Claims (Counts 3-20). 225-571.
    a) Crown’s Position. 225-268.
    b) Senate Administration Principles. 226-228.
    c) Use of pre-signed forms. 229-242.
    d) Proof that Duffy directly responsible for expense claims. 243-245.
    e) Crown’s overview of first eight travel claims (Counts 3-18). 246.
    f) Expenses re: non-Parliamentary partisan activities (Counts 3-6). 247-264.
    g) Introduction to Counts 7-18 re: personal business. 265-268.
    h) Defence overview re: Counts 3-18 and Counts 19-20. 269-272.
    i) The SARS Travel Provisions. 273-277.
    j) Additional Senate Instruments and Documents. 278-280.
    k) No Proof of mens rea. 281.
    l) No Evidence of Communication of New Travel Policy. 282
    m) The Senators’ Travel Policy. 283
    n) The 11th Report of the Internal Economy Committee. 284.
    o) Lack of Clear Policy. 285.
    p) Additional evidence of no criminal mens rea. 286.
    q) Pre-Signing of expense claims not proof of crime. 287—288.
    r) Evidence of Senate witnesses (Duffy, Audcent, Proulx, Furey, Belisle, Bourgeau, Pugliese, Vos/Mercer, Scharf) re: expense claims. 290-312.
    s) Individual Fact Situations
    i) Peterborough and Cambray, Ontario (Counts 3 and 4). 313-330.
    ii) Conclusion- dismissed. 326-330.
    iii) Western Canada trip (Counts 5 and 6). 331-356.
    iv) Conclusion – dismissed. 354-356.
    v) Saanich Fair (Counts 7 and 8) 357-397.
    vi) Conclusion – dismissed. 388-397.
    vii) Peterborough (Counts 9 and 10). 398-425.
    viii) Conclusion – dismissed. 419-425.
    ix) Cockrell House, (Counts 11 and 12). 426-454.
    x) Conclusion – dismissed. 451-454.
    xi) Vancouver Boat Club Meeting. (Counts 13 and 14) 455-487.
    xii) Conclusion – dismissed. 482-487.
    xiii) Trip PEI to Ottawa for Medical Appointment (Counts 15 and 16) 488-506.
    ——xiv) Conclusion – dismissed. 503-506.
    ——xv) Trip PEI to Ottawa for Speech (Counts 17 and 18). 507-530.
    ——xvi) Conclusion – dismissed. 503-505.
    ——xvi) Attendance at Funerals etc in PEI. (Counts 19 and 20) 531-571.
    xvii) Conclusion – dismissed. 568-571.
  9. Expense Claims Made for Personal Services (Counts 21-28). 572-888.
    a) Background of Maple Ridge Media, Ottawa ICF and Gerald Donohue. 573-594.
    b) Overview of Crown’s Position. 595-633.
    c) Chart of payments made by Maple Ridge Media and Ottawa ICF. 61.
    d) Overview of Defence Position re: all service contracts at issue. 634-636.
    e) Evidence of Sonia Makhlouf. 637.
    f) The Senate Administration Rules. 638.
    g) Other Senate Provisions. 639.
    h) 36th Report of Internal Economy Committee research allowance. 640.
    i) Evidence of Nicole Proulx. 641.
    j) Evidence of Gerald Donohue. 642-654.
    k) Evidence of Senator Duffy. 655 – 661.
    l) Individual Service Providers – all paid under “common practice” general services contract with Maple Ridge Media and Ottawa ICF rendered Senate-related services. 662-695.
    m) Monies Paid for “Illegitimate Expenses” (Counts 23-28). 696-888.
    i) Intern Ashley Cain ($500 honorarium). 696-704.
    ii) Make-Up Services to Jacqueline Lambert ($300 Makeup). 707-720.
    iii) Exercise Consultant Mike Croskery (+$10,000). 721-740.
    iv) Comments of Justice Vaillancourt on Exercise Consultant. 736-740.
    n) The Law. 741-836.
    i) Fraud. 742-758.
    ii) Breach of Trust. 759-823.
    iii) Wilful Blindness. 824-836.
    o) Distinguish criminal trial v. administrative or disciplinary hearing 838
    p) Media coverage. 839-840.
    q) Conclusion. 841-888.
    i) General recap. 841-850.
    ii) Counts 21 and 22 dismissed – all proper Senate expenses or used for Senate. 
    ——iii) Counts 23 and 24 dismissed – honest mistake, no criminal intent. 886.
    iv) Counts 25 and 26 dismissed – not criminal conduct. 887.
    v) Counts 27 and 28 dismissed – material change of relationship. 888.
  10. Charges Pertaining to $90,172.24 Payment from Nigel Wright (Counts 29-31). 889-1241.
    a) The Nature of the PMO. 890-892.
    b) Emails: the Facts Behind the Payment. 893-1028.
    c) “Peering Through the Looking Glass.” Justice Vaillancourt’s assessment of what he had learned from the emails about how the PMO operated. 1029-1039.
    d) “Examination of whether Senator Duffy’s conduct amounted to criminality or whether he was just another piece on the chessboard… ” 1040-1241.
    i) Crown’s general position: his solicitation and acceptance of funds elevated conduct to criminal offence. 1040-1054..
    ii) Crown re: bribery charge (Count 29). 1055-1085.
    iii) Defence position re: bribery charge (Count 29). 1086-1091.
    iv) Conclusion on Count 29. 1092-1115 – dismissed.
    v) “Bayne’s cross-examination provided many thought-provoking points… the evidence of Senator Duffy was most compelling..” 1095.
    vi) Do not accept that Duffy’s comments about not having the funds amounts to a demand for reimbursement of his living expenses. 1097.
    vii) “I find there is an overwhelming amount of evidence from the Crown witnesses, the emails and Senator Duffy that the (mistake-repay) “Scenario” theory put forward by the Defence was alive and well throughout this drama.” 1098.
    viii) “I have included the emails earlier in this judgment to highlight the unbelievable lengths that Mr. Wright and his crew went to in order to deal with the ‘Duffy Problem.’ Could Hollywood match such creativity?” 1099.
    ix) The beginning of the payment goes back to the “murky uncertainty” regarding Duffy’s primary residence and the claims resulting from that designation. Nigel Wright agreed that he “probably didn’t owe any money”(as Duffy insisted) but “the political fallout” made Senator Duffy “a major problem” that wouldn’t go away. 1101-1106.
    x) Duffy was not buying into the mistake-repay scenario, so “the PMO employed a two-pronged approach to deal with (him).” “The primary approach involved the use of a steady stream of threats and pressure being applied from all quarters… well documented throughout this judgment. The other approach involved using the ‘do the right thing’ message…. I find that had only one meaning. Senator Duffy was to do the politically right thing by admitting ‘his mistake’ and repaying back the accused living expenses…. “1106-1109.
    xi) “The PMO was also very active working behind the scenes to get all their ducks in a row….” 1110.
    xii) ” I find on all the evidence that Senator Duffy was forced into accepting Nigel Wright’s funds so that the government could rid itself of an embarrassing political fiasco that just was not going away.” 1111.
    xiii) “I find that Senator Duffy did not demonstrate a true acceptance of the funds and did not accept them voluntarily.” …(and) “that there was no corrupt acceptance of the funds by Senator Duffy….no elevated mental culpability or mens rea required….” 1112-1113.
    xiv) “I agree that this entire ‘Scenario’ was not for the benefit of Senator Duffy but rather, it was for the benefit of the government and then PMO. This was damage control at its finest.” – Count 29 dismissed. 1114-1115.
    e) Applicability of Officially Induced Error and a Judicial Stay in the circumstances of this case. 1116-1163.
    i) Agree that legal elements of “officially induced error” made out. Justice Vaillancourt would have stayed Ct. 29 if he had not dismissed it on its merits. 1117, 1161-1163.
    ii) Agree that “the state cannot now turn around and prosecute Senator Duffy to conviction for what senior Government of Canada officials assured him was “the right thing to do.” 1118.
    iii) Duffy’s evidence re: his reliance on the representations of the PMO and Senate leaders and his lawyer unchallenged in cross-examination. 1126.
    iv) Senator Duffy’s evidence re: “the Scenario” and the pressure put on him by the PMO to go ahead whether he wanted to or not. Includes his evidence that on February 13th, the Prime Minister told Senator Duffy “I know it’s unfair Duff. I know it seems unfair. I know you didn’t break the rules, but the rules are inexplicable to our base, and therefore you’re going to have to pay the money back. Nigel will make the arrangements.” All of this evidence was unchallenged in by the Crown in cross-examination. 1127.
    v) Evidence of Nigel Wright. 1128-1136.
    vi) Evidence of Chris Woodcock. 1137-1141.
    vii) Jurisprudence on Officially-Induced Error. 1142-1160.
    f) Fraud on the government (Count 30). 1164-1212.
    i) Nature of the charge. 1165-1166.
    ii) Crown’s argument. 1167-1176.
    iii) Defence submissions. 1177-1206.
    iv) Conclusions. 1207-1212. Finds that Duffy had the consent of the Prime Minister through the PMO and the Senate leadership to go along with the “Scenario.” 1208. Finds that Duffy did not receive a true advantage or benefit and that “the true recipients of any benefit (the disappearance of a political embarrassment) are Nigel Wright, the PMO, the Prime Minister and the Conservative Party of Canada. 1209. Finds no true acceptance of any benefit. 1210.
    v) Count 30 dismissed. In the alternative, would have stayed the charge.
    g) Breach of trust by a public officer. (Count 31)
    i) Nature of the charge. 1213-1214.
    ii) Crown submissions. 1215-1224.
    iii) Defence submissions. 1225-1234.
    iv) Conclusion: Do not view Duffy’s comments that he did not have the funds to repay a request or demand for funds. 1236. Do not find that Duffy was trying to avoid cooperating with third party auditors. 1237. His eligibility for appointment as senator is not before the court for good reason. “The Prime Minister of Canada appoints Senators. If there are issues regarding eligibility, those concerns are addressed by the Senate and not the courts.” 1238. “Mr. Neubauer stated that Senator Duffy’s actions were driven by deceit, manipulation and carried out in a clandestine manner representing a serious and marked (departure from the) standard expected of a person in Senator Duffy’s position of trust. I find that if one were to substitute then PMO, Nigel Wright and others for Senator Duffy in the aforementioned sentence that you would have a more accurate statement.” Adopts Mr Bayne’s approach. Count 31 dismissed. In the alternative would have stayed on the basis of officially induced error. 1239-1241.

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The Mike Duffy Trial #2: Cameras in the Courtroom?

The Mike Duffy trial has attracted unprecedented public interest and a mass of media attention. The Ottawa courtroom where the trial is being heard is not large enough for all the spectators who want to watch the proceedings. As is customary in “high profile” cases, an adjacent courtroom equipped with live streaming has been opened to accommodate the overflow. At the beginning of the trial, Justice Vaillancourt warned onlookers that televising, recording or taking photographs in the courtroom is unlawful. The National Post, in a recent editorial, renewed its demand to “open Canada’s courtrooms.” Two days later, CBC Radio on Day 6 with Brent Bambury aired a vigorous debate between media lawyer Paul Schabas and defence counsel David Lutz on “the case for cameras in the courtroom.” This is a recurring issue.

The argument for opening the courts to cameras and recordings is based on the principle that courts are open to the public, that the more justice is seen to be done, the more the process will be demystified, and the better the accountability of all participants. In an age when most people get their information from television, “broadcasting the proceedings,” as the National Post says, “in a sober, no-bells-and-whistles fashion, is simply an extension of that principle.” Besides, “if the Duffy trial can be live-tweeted, why can’t it also be broadcast?”

The Supreme Court of Canada was a pioneer in permitting camera access to the courts. In 1981, it allowed cameras to broadcast argument of the Patriation Reference. Twelve years later, it did the same thing in the Sue Rodriguez assisted suicide appeal. Since 1995, CPAC, the Cable Public Affairs Channel, has broadcast all their proceedings, using small, remotely operated cameras affixed to the walls of their main hearing room. Beginning in 2009, those proceedings have also been webcast and are available to anyone, anytime, from the archive on the Supreme Court’s website. Some Canadian Courts of Appeal have allowed video coverage of occasional high-profile cases on an case-by-case basis. A pilot project in the Manitoba Superior Court last year created a presumption that proceedings in certain courts could be broadcast “absent compelling arguments to the contrary,” but excluded the testimony of witnesses and jury trials. In the United States, all 50 states allow some camera access in state courts, but none is allowed in federal proceedings or the US Supreme Court. In Britain, limited video coverage occurs only in Scotland; elsewhere there have been some experiments. Following a three-year pilot project in New Zealand, all levels of courts there permit the use of cameras. Similarly in Australia, but on a more restricted and ad hoc basis.

Opponents of cameras in the courtroom are concerned about the effects on witnesses, jurors, lawyers and judges. Witnesses never want to testify. The possibility of appearing on television can only add to their stress. And how can the court protect their privacy? Or give any oversight as to how the media will use what they have filmed? Existing powers under the Criminal Code to impose a ban on the identification of witnesses and to exclude the public from particular testimony are limited. There is the danger that edited snippets of evidence taken out of context will misrepresent what actually happened. Electronic coverage of jury trials would have special problems: juries may need to be sequestered to avoid contaminating what they see and hear, or finding an impartial jury for a possible retrial could be more difficult. Citing the notorious O.J. Simpson trial, isn’t there a danger of lawyers and judges playing to the cameras and making a mockery of the judicial system? Or of multiple cameras undermining court decorum? From a marketing perspective, televising entire trials in real courtrooms in real time is not like the tv program, Law and Order, or the popular “This is Wonderland” series about the Old City Hall court in downtown Toronto which entertained viewers for three seasons a few years ago. For all the moments of high drama, court proceedings can be static, boring, hard to understand, “like watching paint dry.”

Before I was a judge, I was in the “open courtroom to cameras” camp. Early after my appointment, however, a disciplinary hearing for a fellow judge alleged to have kissed a crown attorney without her consent was televised by a local cable company. The results were horrific. Pictures of the complainant were repeated over and over again as all the media piled on to the coverage. Ten second clips taken out of context re-victimized the complainant, destroyed her privacy, and added nothing to any public understanding of what was actually going on. This was a classic worst case scenario over which the court had no control.

It strikes me that the existing distinction between cameras in trials where the rights of witnesses could be jeopardized and cameras televising appeals where lawyers are only making argument is a valid one. Perhaps existing absolute bans should be nuanced to reflect that practice in trial courts: electronic coverage to set the court scene and during argument and final submissions, but not while witnesses are testifying. For the rest, the public would need to attend in person or rely on court sketches and summaries from reporters. Pending any change, those interested might want to check out CPAC’s coverage of Supreme Court of Canada hearings. Those in the know say it’s a good way to fall asleep.

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The Mike Duffy Trial #1: Why in the Ontario Court of Justice?

Suspended Senator Mike Duffy faces thirty-one charges under the Criminal Code; multiple counts of fraud over $5000, fraud under $5000, breach of trust, and one count each of fraud on the government, and bribery. These charges relate to residency expense claims, expense claims unrelated to Senate business, awarding of consulting contracts, and accepting $90,000 from Prime Minister Harper’s Chief of Staff, Nigel Wright.

These charges were laid on July 17, 2014, and the trial began on April 6, 2015, with a total of 41 days set aside in April, May and June to hear the evidence. Clearly this is a complex matter, of high public interest and scheduled for trial on an expedited basis. That it has come to trial so quickly reflects the efforts of both parties and the criminal procedure context in which they are operating.

How it is that a trial considered “one of the most important in our history” is being heard in the Ontario Court of Justice?  Most “high profile” trials which attract national media attention are heard in a Superior Court, the Ontario Superior Court or a Court of Queen’s Bench in other provinces. These superior courts (called s. 96 courts because that section of our 1867 constitution  establishes them) have judges appointed by the federal government, and are the only courts with authority to hear jury trials. All jury trials, and many important “judge alone” trials, are heard in this court.

Mike Duffy, by contrast, is being tried in the Ontario Court of Justice, the lower court in the judicial hierarchy, where the judges are appointed by the provincial government. Mr. Justice Charles Vaillancourt is a seasoned veteran of that court. So why is Mr. Duffy before Justice Vaillancourt and not some judge of the Superior Court?

Although lower in the hierarchy than the Superior Court, the Ontario Court of Justice does the majority of the criminal court work in the province. All criminal cases start there. Depending on the nature of the charge, and on the choices (called “elections”) made by the crown and the defence, the matter may stay in the Ontario Court for trial or “go upstairs” to the Superior Court.

Most of the charges facing Mr. Duffy are straight “indictable” offences, serious charges where the maximum penalty ranges from a potential of five years custody to fourteen years. Where the charge is an indictable offence, Mr. Duffy would have been able to “elect” how he wanted to be tried. By a judge alone, in the Ontario Court of Justice? By a judge and jury, in the Superior Court? Or by a judge alone, in the Superior Court?

If he had opted for the Superior Court, he could have had a prior preliminary hearing in the Ontario Court. Preliminary hearings are held, at the request of the defence, to see if the crown has a prima facie case on each charge, and for the purposes of disclosure. When I was first appointed to the Bench, preliminary hearings were commonplace in the provincial court, and often used as a tool for delay. If a defendant chose “a prelim” (as they are called), it would be many months before it could be heard and, when it was, the defendant would frequently “waive the prelim” and consent to committal to the Superior Court without hearing any of the evidence. Then it would be many more months before a trial date could be set in the Superior Court. Since the 1990s, prelims have been streamlined. Usually the crown presents only enough evidence to satisfy the basic test for committal, and the defence presents no evidence at all. Defendants are now required to indicate what evidence they need to hear on a prelim, and the specific issues to be addressed. Disclosure is less of an issue than previously, as the Supreme Court of Canada decision in R. v. Stinchcombe (1991) compels all crown attorneys to disclose all they have about the case to the defence well before the trial.

As the Duffy case involves the relationship between Mr. Duffy and the Prime Minister’s Office, and the nature of the Canadian Senate, getting the matter to trial as soon as possible would have been a priority for both parties. The delay inherent in scheduling a preliminary hearing, and the publication ban typically imposed on evidence heard at a prelim, would have served the interests of neither party.

Another reason for the trial to go ahead in the lower court is that the seven counts of “fraud under $5000” charges against Mr. Duffy are “hybrid offences” where the crown can elect to proceed “by indictment” or “by summary conviction.” If “by indictment,” the Criminal Code mandates that fraud under charges must remain in the provincial court and the maximum penalty is two years in jail. That all the charges against Mr. Duffy should be heard together favours having the trial in the provincial court.

Just to complete the analysis, note that provincial criminal courts have exclusive jurisdiction to hear and decide all “summary conviction” offences. There are “straight” summary conviction offences defined in the Criminal Code, such as unlawful assembly, trespassing by night, indecent acts. There are also “hybrid” summary conviction offences where the crown has the choice of proceeding summarily or by indictment. Crowns generally choose to go summarily where the charges are alleged to have taken place within the past six months, are less important on their facts, and where the right maximum sentence on conviction would be six months or, in the case of certain offences like sexual assault or sexual interference, eighteen months.

Amendments to the Criminal Code in the 1990s increased the maximum sentence for conviction on more serious summary conviction offences to eighteen months. That this longer prison term was now available had a major impact on the workload of the Ontario Court of Justice. Now crown attorneys could secure an appropriate sentence without the need for a preliminary hearing or going “upstairs.” The effect has been to make the Ontario Court of Justice the principal criminal court in the province, doing more than 95% of the criminal and youth court work, attracting judges very skilled in criminal law, and also more “high profile” cases. Now, whether at the choice of the crown or the defence, the overwhelming majority of all criminal trials occur in the Ontario Court of Justice.

People concerned about having so important a matter decided by a single judge rather than a jury can be reassured that trial by judge alone is the most accountable of all proceedings. Juries do not have to give reasons for their verdicts and, in Canada unlike the United States, it is unlawful to ask about or reveal the nature of jury deliberations. A judge alone, by contrast, is required to give reasons for his or her findings. These reasons must deal with all the issues before the court and must be comprehensible to the litigants and to the public. A litigant unhappy with the result can appeal.

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