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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