The Heart of the Mike Duffy Judgment

So, Mike Duffy was acquitted on all 31 charges. The CBC has posted a link to the full text of Justice Vaillancourt’s decision. On my legal blog, Re-View from the Bench, I have posted a link to the CanLII decision on the official Ontario Court of Justice website. I have also prepared an unofficial Index to Justice Vaillancourt’s decision which may help you access what most interests you. This is a lengthy, complex decision that merits close attention.

At the end of the trial, Justice Vaillancourt asked for written submissions from counsel. Many judges do the same thing when the evidence has been heard in a chopped-up trial over many months. This trial started on April 7th last year, and concluded for judgment on February 23rd this year, a total of 60 days of sittings over 11 months.

Justice Vaillancourt’s 308-page, single-spaced judgment, released last Thursday, sets out in detail the evidence and arguments of counsel, both generally and with respect to each set of charges. He found it convenient to summarize what he heard and read, using counsel’s submissions at length. His response to those submissions, interspersed throughout the text and found in his introduction and conclusions, is concise and to the point. That we have available to us all the evidence that the Court considered, and the arguments put forth by counsel, allows us to understand why he made the findings he did. That is the purpose of the duty on judges to give reasons for their decisions.

There are several keys to this decision. The first is Justice Vaillancourt’s finding that Senator Duffy was “an overall credible witness.” (para 69) The second is his finding that, with respect to his residency and housing claims, “Senator Duffy honestly and reasonably believed and relied on the advice he received regarding his appointment and he acted upon it” (para 214). There was no definition of the meaning of “primary residence” in the Senate Administration Rules at the time, and what Duffy did was common practice among the senators. That being the case, there was no proof that these claims were fraudulent or in breach of his trust as a Senator.

This is the essential background for the part of the decision which has most galvanized public attention: the judge’s findings about the three charges of bribery, fraud on the government, and breach of trust relating to Senator Duffy’s accepting $90,172.24 originating from Prime Minister Harper’s Chief of Staff, Nigel Wright. Beginning at paragraph 889, you can read all the details of the evidence heard and the submissions made on these charges. It is a fascinating exposé, blow-by-blow, of what actually happened two years ago when “the Duffy scandal” first broke and the PMO went into crisis mode to contain it.

The Crown theory was that Senator Duffy committed the offences because his complaint that he didn’t have the money to pay the disputed residency and housing claims was essentially a request for payment of those claims, and because he accepted the money. The Defence theory was that the PMO knew they were asking (“basically forcing”) him to pay money he probably didn’t owe, but that they needed him to buy into the “mistake and repay strategy” to calm the political storm created by “the Duffy problem” that wouldn’t go away.

Justice Vaillancourt agreed with Mr. Bayne for the defence. He was satisfied from all the evidence (including the emails, the evidence of the crown witnesses, and of Senator Duffy) that the PMO concocted a “mistake and repay scenario” for their own political purposes. When Senator Duffy resisted and wanted to put his position before the independent Senate audit going on at the time, they used “a two-pronged approach” (the first, threats and intimidation; the second, an appeal to “do the right thing”) to force him into line. Vaillancourt found that Duffy’s taking the money was not a true acceptance, was not done voluntarily, and conferred on him no real benefit. 

It is highly unusual for a judge to use the flamboyant language used by Justice Vaillancourt to describe “the inner workings of the PMO: “ruthless efficiency;” “The political, covert, relentless unfolding of events… mind boggling and shocking;” “The precision and planning would make any military commander proud;” “in the context of a democratic society, the plotting… unacceptable;” “ordering senior members of the Senate around as if they were mere pawns on a chessboard;” and his implicit finding that “Senator Duffy was just another piece on the chessboard when it came to Mr. Wright’s $90,172.24 cheque.” The great bulk of the decision is couched in the heavy, sedate language of lawyers. His Honour is writing for the litigants and for the public at large. He cannot be criticized if he used language that would break up the monotony of a detailed decision and help the public understand, and really appreciate in a visceral way, what he found and why. 

I am planning a series of posts on the Mike Duffy decision. The topics will include: the issues with respect to Mike Duffy’s residency and housing claims, Mike Duffy’s travel expenses, Mike Duffy’s personal service expenses, the distinction between criminal and administrative review, and Mike Duffy’s trial as political theatre. This has been a fascinating episode in Canadian political and legal history. Stay tuned.

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