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Justice Charles Vaillancourt has found Senator Mike Duffy not guilty on all charges, starting with the key one of fraudulently claiming his cottage in Prince Edward Island as his principal residence.
The judge ruled that he believed Duffy when the latter said he honestly tried to follow the rules as he understood them — and as the Senate’s leadership and the Prime Minister’s Office (PMO) had explained them to him.
Vaillancourt noted that the Canadian constitution requires that senators be “resident in,” and own $4,000 worth of property in, the provinces they represent. However, since the constitution does not define “resident in” Vaillancourt said that, in his view, the only relevant, tangible requirement is the $4,000 in property.
In addition, Vaillancourt noted that Duffy was not, in any way, guilty of criminal mens rea on the residency issue.
Duffy did not have a guilty mind, Vaillancourt said. He did not knowingly break any rules. Duffy believed he was respecting the rules — and, more to the point, following the precise orders of the prime minister who had appointed him to the upper house.
It is important to note that the judge is ruling in an individual criminal matter here.
Vaillancourt has not provided a constitutional interpretation of Senate residency requirements.
If that were ever to happen, it would be a job for the Supreme Court. As well, one wonders to what extent Canadian public opinion would support the idea that it is legitimate for senators –who should, notionally, represent their provinces above all else — to be absentee parliamentarians.
Vaillancourt also dismissed 18 other charges relating to Duffy’s travel expenses.
The judge said that even in those cases where Duffy combined personal with parliamentary business, this was normal and legitimate. In addition, he ruled that it is an accepted practice for members of both the House and the Senate to engage in partisan activities while travelling on parliamentary business.
The judge even dismissed the charges related to Duffy’s use of consulting contracts. The prosecution had alleged Duffy used these contracts to do an end-run around Senate expense rules.
Prosecutors pointed out that the senator had employed consulting contracts as a way to pay a makeup artist and a personal trainer.
Vaillancourt admitted that Duffy’s use of these contracts did raise legitimate questions about “best practices.” However, he ruled, Duffy had not acted outside the law.
If there were any charges that might stick to Duffy it was those related to the consulting fees. But, in the end, the judge found Duffy’s and his lawyers’ explanations credible.
It was not even close on the question of whether or not Duffy was guilty of accepting a $90,000 bribe from former Prime Minister Harper’s one-time Chief of Staff Nigel Wright.
Vaillancourt noted that Duffy had to be dragged into that scheme kicking and screaming. The senator for Prince Edward Island sincerely believed his expenses were all justified and wanted a chance to demonstrate that to Deloitte and Touche, the outside auditors called in to examine Senate expenses.
If there was any culpability in the $90,000 matter, Vaillancourt argued, it lay entirely with Harper’s PMO.
The judge did not say whether or not he believed the folks in the PMO were criminally guilty. He said unequivocally, though, that he thought they were morally culpable.
The Harper and other governments misused the upper house
The Vaillancourt judgment only makes clearer what many have believed all along.
What is most important about this trial is not the guilt or innocence of one person.
It is, rather, the light the trial has shone on how the Harper Conservative government — and, to be honest, many earlier governments, both Liberal and Conservative — have used (and misused) the upper house of the Canadian Parliament.
The Senate has always been a comfortable and convenient shelter for a prime minister’s key fundraisers, political operators and campaign managers.
In 1966, when Prime Minister Lester Pearson appointed his national campaign director, Keith Davey, to the Senate, at the tender age of 39, it was openly for the purpose of giving Davey a taxpayer-funded base for his purely partisan political activities.
Davey had worked on three Liberal campaigns and went on to work on six more.
In essence, the taxpayers paid several decades’ worth of the salary, and a good many of the expenses, of a man whose main job had little to do with the legislative work of Parliament. Davey’s was a partisan and political job, full stop.
This sort of practice was considered to be normal at the time.
Members of the Ottawa elite, including the journalistic community, accepted it with cynical shrugs.
It’s just the way things are done, they would say.
Bribes and pay-offs
There have been other Senators before Duffy, Patrick Brazeau, et.al., who got themselves caught up in actual scandal.
There was what is known as the Beauharnois scandal, for instance.
In the 1920s, when Liberal William Lyon Mackenzie King was prime minister, a Montreal power company, Beauharnois Light and Power, sought the right to dam and divert part of the Saint Lawrence River, west of Montreal, and build a hydroelectric station.
There were other proposals, from other companies, who opposed the diversion, but Beauharnois won the day.
To help matters along, the power company had given large cash donations to two sitting Liberal senators.
In the 1970s, the very first Senator the current prime minster’s father had appointed, Liberal fundraiser Louis Giguère, was swept up in what was known as the Sky Shops affair.
Sky Shops Ltd. had operated duty free concessions at Montreal’s Dorval (now Trudeau) airport, but lost the contract in 1972.
The company then sought the help of Senator Giguère, who was very close to Prime Minister Trudeau-père, to get their lucrative concessions back.
Giguère succeeded, but, subsequently, two prominent Sky Shops Ltd. shareholders — one of them the president of the National Hockey League, Clarence Campbell — were convicted of offering the Senator a bribe of $92,000. Giguère was also charged, separately, but got off due to lack of evidence. He remained a senator until his retirement.
Those are not the only Senate related scandals, but the Duffy affair has attracted considerably more public attention than any of the others.
One of the reasons for that might be the fact that the Official Opposition at the time the Duffy affair broke had no seats in the Senate.
The Tom Mulcair-led NDP had no Senate skeletons of their own to worry about. Furthermore, the NDP had long advocated the abolition of the non-elected upper house.
Mulcair could happily focus on Stephen Harper’s use and misuse of the upper house without fear of the prime minister throwing back any of his own party’s senatorial misdeeds.
Some of the charges against Duffy have nothing to do with the former prime minister.
For instance, Duffy is said to have used consulting contracts to get around the Senate’s spending restrictions, and bill the upper house for illegitimate, personal purposes.
Other Senators have been charged and found guilty of using Senate funds for personal purposes in the past.
A matter of a prime minister’s choices
The heart of the Duffy scandal, however, is not about petty, personal greed.
It is about a former prime minister’s choices.
Toward the end of his long judgment, Justice Vaillancourt gave his blunt assessment of the way Stephen Harper ran his own office.
He said if anyone thought Harper’s Prime Minister’s Office (PMO) “was a benign bureaucracy, they were mistaken.” Harper’s PMO was a group, the judge asserted, that wielded significant power, and whose mantra was: if there’s a problem, “get it done”.
That seems to have been the philosophy in dealing with the Senate.
When Harper named Pamela Wallin and Mike Duffy to the Senate not for the province where both of them lived, Ontario, but for Saskatchewan and Prince Edward Island respectively, he insouciantly planted the poison seeds that became the scandal we know today.
As senators, the two non-residents would have to frequently visit the provinces they represent.
But the rules state that senators can only claim expenses when travelling back and forth between temporary lodgings in Ottawa and permanent residences in their home provinces.
In appointing them to represent provinces where they did not live, Harper put Duffy and Wallin in a double bind situation.
To carry out their duties, they had to travel frequently to Saskatchewan and P.E.I.
But, according to the strict letter of the Senate’s rules, they should have paid for all of that travel out of their own pockets.
As the scandal unfolded, Harper unabashedly took that view, seemingly indifferent to his own role as prime mover of the whole affair.
The former prime minister tried to argue that his two dubious appointments were, somehow, kosher, based on a longstanding convention that senators merely have to own property in — but do not actually have to live in — the provinces they represent.
The black and white words of the Canadian constitution state the exact opposite. But Harper seems to have been ignorant of that fact, even if his own lawyer, Benjamin Perrin, was not.
At the same time, Harper tried to shift all blame for any wrongdoing onto the senators themselves.
He said repeatedly that they had to obey the Senate’s rules governing expenses, and if they failed to do so, it was on their heads.
Duffy argued that he had been led to believe the contrary when he was first appointed. Justice Vaillancourt now says he believes Duffy on that point.
The former broadcaster said, under oath, that Harper and his entourage very much wanted him to behave, at the outset, as though he actually lived full time on the Island.
To do so, Duffy would have to charge for travel expenses.
When the media and the opposition turned those travel expenses into a scandal, the Conservative hierarchy, from Harper down, decided to cut Duffy loose. He should simply pay back the money, Harper and his entourage said, pretending they had never quite explicitly told him he was perfectly entitled to that money.
In fact, they had originally gone further. They had virtually ordered Duffy to claim those expenses, in order to establish the legitimacy of his representing PEI in the upper house.
And so, most of what is scandalous here arises out of treating the Senate not as a serious legislative body, with an important role in Canada’s federal system.
In other federations, such as Germany or Australia, the upper houses are the authentic voices of the provinces (or states or länder) at the centre.
In Canada the Senate has been, for the most part, a low rent playground of second rate oligarchs and pseudo aristocrats.
It is not the legislative house of the provinces; it is a house of patronage and partisanship.
The current prime minister has endeavoured to change all that with a new method for appointing supposedly non-party-affiliated senators.
We’ll have to wait a while to see how that works out.
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