[NEWS] Seven links on the acquittal of Mike Duffy and the future of the Senate

[rfmcdonald]

News that Senator for Prince Edward Island Mike Duffy was, last Thursday, resoundingly acquitted of all 31 charges of misuse of Senate funds, was surprising. I, and others, were taken by the thoroughness of the acquittal by Justice Charles Vaillancourt, as described by CTV.

A judge in an Ottawa court has cleared Senator Mike Duffy of all 31 criminal charges and delivered a scathing indictment of the political operations of the office of former prime minister Stephen Harper.

Justice Charles Vaillancourt said the Prime Minister's Office under Harper treated Senators as "pawns" and described Duffy as just another "piece on the chess board."

"The political, covert, relentless unfolding of events is mind-boggling and shocking," he said. "The precision and planning of the exercise would make any military commander proud. But in the context of a democratic society, the plotting that's revealed in the emails can only be described as unacceptable."

Vaillancourt portrayed Duffy as an unwilling partner in a scheme to accept a $90,000 cheque from Harper's former chief of staff Nigel Wright to cover questionable expenses, even though they were likely legitimate[.]

CTV's Sonja Puzic went into greater detail over Vaillancourt's ruling.

Vaillancourt said he accepted the defence’s argument that the senator was a pawn in the PMO’s strategy to manage the fallout of media reports about the validity of Duffy’s residency and expense claims.
The judge said the PMO’s goal was to “calm that storm” and the PMO staffers who testified at Duffy’s trial struck him as “highly intelligent and hardworking individuals who executed their mandates with ruthless efficiency.”

Vaillancourt said the PMO emails entered as evidence, including correspondence between Wright, senior PMO staffers and Conservative senators in leadership positions, led him to ask 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 robotically marching forth to recite their provided scripted lines?... 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!!!!!” Vaillancourt wrote in his judgment.

[. . .]

Vaillancourt also called Duffy a credible witness and disagreed with the Crown's allegation that the senator misrepresented the location of his primary residence in Prince Edward Island.

The judge said that Duffy sought out experts’ advice on the issue of primary residence, including from Stephen Harper. "This was not some minor bureaucratic official speaking but the Prime Minister of Canada," he wrote.

Vaillancourt said there wasn’t any “sinister motive” on Duffy’s part and noted that there appears to be no definition of principal residence or related criteria in the Senate policy.

MacLean's noted that, when Duffy returns to his work as a Senator, things are likely to be awkward.

“In the short term, you think. ‘Okay, this guy’s going down, we’re not going to see him again, and Heaven forbid I get associated,’ ” says Sandra Robinson, a professor at the University of British Columbia’s Sauder School of Business. “But now this person’s coming back in and it’s, ‘Can we all pretend that didn’t happen?’ That’s the only way you cope.”

Robinson specializes in dysfunctional workplace behaviour (an awful lot of people she mentions this to insist she needs to come to their office), ostracism, trust and what’s known as “territoriality.” That’s the human tendency to demonstrate ownership of positive things—my team, my mentor, my friend with the cool job, my shiny new car—as a way to broadcast our identity to the world. “We know we get judged by the company we keep, in both good and bad ways,” she says.

But while the negative side of that phenomenon hasn’t been studied, Robinson believes “disownership” works similarly, in reverse. So if, for instance, your co-worker was hauled out on a very public carpet to answer for a bunch of issues that tied in pretty closely with how your own job works, you would probably try to distance yourself.

CBC noted that Duffy may be entitled to some compensation from the Senate.

It is possible that Senator Mike Duffy could find himself before the courts again soon — this time, not as defendant but as a plaintiff seeking to recoup money lost during his protracted trial.

Duffy, exonerated on 31 charges of fraud, bribery and breach of trust, lost access to his office and Senate expense account three years ago when he was suspended without pay. He gained back his salary last summer ​when Parliament was dissolved for the election but remained stripped of the other perks of the job until his acquittal Thursday.

"If I was him, I would certainly demand back the withheld pay from the last two and a half years," Duffy's lawyer, Donald Bayne, told CBC's The House. "That was a suspension without pay."

He said his client intends to return to work at the Senate.

​Gilles LeVasseur, a professor of business and law at the University of Ottawa, agreed that Duffy's first course of action should be to head over to Senate administration and settle all his outstanding claims — owed salary, benefits (with interest) and other costs incurred that were not reimbursed while he was suspended.

"He may have to go before the courts in a civil case and sue the Senate for non-payment for his claims," LeVasseur said.

The Toronto Star's Thomas Walkom made the reasonable argument that, notwithstanding his criminal innocence, making Mike Duffy a senator for Prince Edward Island stretched the letter of the law intolerably. Senators have to live in the province they represent; that Mike Duffy did not do so did not bother Harper at all.

There were Ontario Senate seats open. But none would go to Duffy. If he wanted a Senate position, he would have to represent P.E.I., the province of his birth.

The former journalist was assured by Harper, by an official in the prime minister’s office and by two senior Conservative senators that everything would be fine.

Duffy already owned a summer cottage in P.E.I. It was unusable in winter and situated on a road that wasn’t plowed. But that didn’t matter. He was told he could claim it as his primary residence and thus meet the constitutional requirements.

In a December 2008 meeting, Harper explained the twisted logic succinctly: Since Duffy was being appointed to represent P.E.I. in the Senate, then by definition he must live in P.E.I.

As Vaillancourt points out: “This was not some minor bureaucratic official speaking, but the prime minister of Canada.”

Writing in the Ottawa Citizen, meanwhile, David Reevely argued that Vaillancourt's ruling was only possible because the Senate's rules were so broken as to permit practically anything.

The sloppiness of the Senate’s rules excused Duffy’s conduct in claiming his Kanata home as a secondary residence, in taking trips costing tens of thousands of dollars (with mere tablespoons of Senate business justifying some of them), and in using contracts for an old friend to pay numerous expenses the Senate might not have been willing to cover if he’d filed for them directly, Vaillancourt found.

“I am encouraged that the Senate seems to have made some significant changes,” Vaillancourt said, tightening up its rules in response to Duffy’s case. But when Duffy did the things the Crown charged him for, the rules were such that everything — everything — he did was defensible, the judge found.

For example: Duffy billed the Senate for two trips to Vancouver, where he stayed several days with his children there and had a lunch with some businesspeople (in one case) and popped over to Victoria to speak at a charity dinner (in the other).

“I leave the cost analysis of the trip to Senate Finance,” Vaillancourt said of that second voyage, which cost the public something like $10,000.

Maybe it was a terrible use of public funds. Maybe Duffy’s fellow senators should have done something about it. But it wasn’t against the law, Vaillancourt found.

NOW Toronto's Luke Savage takes things further, using this case to call for the abolition of the Senate altogether.

During the Harper era, the Senate was notorious for its noxious partisanship. No fewer than 14 defeated Conservative candidates got jobs for life, and high-profile appointees like Duffy functioned as little more than fundraising apparatchiks for the party while disgracefully pocketing salaries paid by the public.

But that hardly represented a break from the historical norm. Prime ministers, both Liberal and Conservative, have long stuffed the place with party loyalists and those chosen from their own ranks and used it for partisan advantage.

It's said that the Senate is "broken." Adjectives like "moribund" and "anachronistic" are closer to the truth.

The institution's foundational purposes were essentially twofold: to give Canada's four regions representation in the Upper House and provide "sober second thought."

Despite its reputation for scandal, in its nearly 150 years the Senate has more or less performed the latter purpose without fail.