Published Oct. 26, 2015, in The Waterloo Region Record.
With the change of government, what happens to the trial of Senator Mike Duffy?
Back in August, in the early days of the federal election, the daily drip-drip of testimony from the trial knocked Stephen Harper off message. He faced an inquisition at every stop: who in the Prime Minister’s Office knew what, when did they know it, and how much did they tell Harper about the infamous $90,000 cheque that his chief of staff wrote to the suspended senator?
Then, to the immense relief of the Conservatives, the trial adjourned and the Duffy questions dried up as the campaign focus turned to recession, Syrian refugees and (bizarrely) the niqab worn by some Muslim women. Continue reading
But now the Duffy trial, which has already consumed 46 days of court time, is about to come out of hibernation. It is scheduled to resume on Nov. 18, run to Dec. 18, then in all likelihood extend into 2016.
To what end?
Everything the judge has heard so far has been from the prosecution side – 46 days of testimony from Crown witnesses and their cross-examination by Duffy’s lawyer. The Crown will still be at bat on day 47; the defence has not had its innings yet.
To put it charitably, the Crown’s case has been less than overwhelming. It has done more to help the defence than the prosecution. We have learned that Harper appointed Duffy in late 2008 as a senator from Prince Edward Island knowing full well that he had been resident in Ontario for years. We learned that the Senate expense rules were flexible enough that no one blew the whistle when Duffy declared his cottage in P.E.I. to be his principal residence and claimed accommodation expenses for his true home in suburban Ottawa.
We learned that the Conservatives valued “Old Duff” for his status as a media celebrity and his efforts as a cheerleader and fundraiser at party events; he regarded that as part of his job as a Tory senator, and some of his travel costs were charged to the upper house. Although Duffy certainly pushed the envelope, he was not the only senator whose expense claims, while accepted by the Senate, did not pass muster with the auditors.
Of the 31 charges Duffy faces, the key one is bribery – the $90,000 personal cheque Nigel Wright wrote to enable Duffy to repay expenses that auditors had determined he should not have claimed. Yet the central question remains: how can Duffy be convicted of accepting a bribe when no one is charged with offering the bribe?
From the outset, the Duffy trial has been two prosecutions in one – a political trial inside a criminal trial, or vice versa. The criminal prosecution is weak. The chances of a conviction appear remote. Under other circumstances, charges would never have been laid. Under other circumstances, they would have been withdrawn by now.
The “other circumstances” were the political considerations. Bent on pursuing his “tough-on-crime,” Stephen Harper could not afford to allow presumed fraud to go unprosecuted when it appeared just down the hallway in the Senate chamber. Mike Duffy being the most egregious offender identified by the auditors, he became the target in a show trial that, as it transpired, would reveal more about the PMO’s frantic efforts (hundreds upon hundreds of emails) to cover up its involvement than it would about the ethical sins of senators.
Justin Trudeau doesn’t need this Harper government mess. He has already cut Liberal senators loose from the party caucus. He has promised to begin a process of Senate reform by replacing patronage with a system of merit-based appointments.
Common sense would suggest he call off the Duffy prosecution, or arrange to have Liberal Premier Kathleen Wynne call off the Ontario government lawyers who have been handling the Crown’s case.
The election is over. Harper is gone. Let the Senate get its act together and deal with Mike Duffy itself, as it should have from the beginning.