Friday, April 22, 2016

Highlights from Justice Vaillancourt's Ruling in R. v. Duffy

A 308-page judgment makes for time-consuming reading. That said, you can access it in its entirety here. What follows in this post are highlights of the judgment or, at least, what I consider some of the more salient parts.

[146] Senator Duffy pursued the residency issue further. On January 6, 2009 (confirmed in Exhibit 7), Senator Duffy testified that he attended the office of his Senate Leader and member of the Harper Cabinet, Marjorie LeBreton, to resolve the matter. When he explained his understanding that there was and could be no minimum time requirement to be spent at his residence at 10 Friendly Lane for it to be his primary residence in the Province for which he was to be appointed (because of the Senate attendance requirement in Ottawa and travel on Senate business), he was assured by Senator LeBreton that 10 Friendly Lane fully qualified and there was no such time requirement and The Guardian article was nothing but “politics” that he should ignore. He took this as being consistent with what he’d been advised by the Prime Minister on December 8th & 16th, 2008, that upon appointment, 10 Friendly Lane would be his Constitutionally primary and permanent residence, making him a P.E.I. resident. On the same date, January 6th, Mr. Duffy received from the Senate Leader and her constitutional advisor a written memorandum (Exhibit A Tab 19) advising that the P.E.I. property that he owned (10 Friendly Lane) qualified him as a P.E.I. resident even if he had lived “in Ottawa 99% of the time.” The primary constitutional residence in the province of appointment was not dependent on the amount of time spent there (or the seasons or the relative value or a concept of “ordinarily inhabits”) (Evidence of Senator Duffy December 8, 2015 pages 95-101). Primary Residence Declaration

[151] At the end of the January 7th caucus orientation session, Senator Duffy approached Senator Tkachuk directly, one-on-one. Senator Duffy testified that Senator Tkachuk was regarded in the Senate Tory caucus as the “guru” on Senate matters. Senator Duffy explained to Senator Tkachuk the history of The Guardian article, his owning a residence in P.E.I. on which he paid taxes, insurance and hydro as well as a residence in Ottawa and questioned whether he could or should claim the housing allowance for the NCR property. Senator Tkachuk informed Senator Duffy without hesitation that he (Duffy) was the Senator from P.E.I., that he (Duffy) had the expenses of 2 houses (the property taxes, insurance and hydro expenses of 2 houses) and that he (Duffy) should most definitely claim the NCR housing allowance as a P.E.I. Senator, exactly as other P.E.I. Senators claimed it. Senator Tkachuk advised Senator Duffy that it was important that he claim all expenses and allowances and not allow “any light” between himself and other P.E.I. Senators (as that would only fuel The Guardian article controversy). Senator Tkachuk advised Senator Duffy that the NCR living expense claims were essential for him to make as a Senator representing P.E.I. and that the claims were entirely within the Senate rules and appropriate. Senator Tkachuk advised Senator Duffy that Senator Duffy was on “travel status” when in Ottawa/the NCR (Evidence of Senator Duffy December 9, 2015 pages 1-9; 12-13; 120 & 128) and that Senator Duffy’s primary residence designation of 10 Friendly Lane was valid (page 4). When Senator Duffy explained that he personally did not believe in per diem claims, Senator Tkachuk told him that he must claim per diems as the failure to do so would only raise questions. Senator Tkachuk’s advice was consistent with the prior advice received from the Prime Minister, the PMO (Mr. Teneycke), Senator LeBreton and Mr. McCreery

[152] Not only is all of Senator Duffy’s evidence about the specific advice given by Senator Tkachuk wholly uncontradicted (Senator Tkachuk was a listed Crown witness never called by the Crown in its case or as a reply witness), it is entirely consistent with Senator Tkachuk’s reported public comments on December 3, 2012, set out at Exhibit 45B Tab 1: “Duffy’s expenses are entirely within the rules”; “many Senators who own houses in Ottawa make similar claims for housing expenses” and then after staying here [Ottawa] “all winter long… they go home for the summer.” “Your primary residence is what you say your primary residence is.”

 [220] One must always keep in mind that when various statutes define terms that are residency related, such definitions are statute specific.

[221] The search for the meaning of primary residence here is hampered because there was in fact no definition in place at the time in the Senate Administration Rules.

[223] As the years have gone by, the number of documents that must accompany the primary declaration document has grown and references regarding secondary residences have been added and fleshed out. However, there does not appear to be any definition of primary residence.

[224] After reviewing the submissions and the facts in this case, I am not satisfied that the Crown has proven the guilt of Senator Duffy in relation to alleged fraudulent residency declarations and/or expense claims in connection thereto beyond a reasonable doubt and accordingly, and accordingly, Counts 1 and 2 are hereby dismissed.

[902] The newspaper article by Glen McGregor of the Ottawa Citizen on December 3, 2012 reported Senator Tkachuk’s remarks and comments about Senator Duffy’s residency and living allowances. Senator Tkachuk’s responses included: that Duffy’s living expense claims are “entirely within the rules”; that there is no reason for Senator Duffy not to claim the housing allowance; that Senator Duffy has a home here, so he can charge the daily rate; that there is no test to determine whether a Senator actually lives in his or her primary residence; that a lot of other Senators stay here all winter and then go home for the summer; and many Senators make similar claims for housing expenses.

[909] The PMO and Senate leadership seemed content with Senator Duffy’s four years (2009-2012) of living expense claims and viewed them to be valid and entirely within the rules.

[910] No one was suggesting a RCMP reference at this time. The game plan was one of politically calculated inaction, a classic strategy. 

[911] Senator LeBreton, Government leader in the Senate, was still advocating this strategy in January 2013 and encouraging Senator Duffy not to engage with Mr. McGregor and to just ignore him. (emails #10; 13)

[912] Mr. Bayne contends that the rest of the story told in emails is how this “classic” strategy of calculated passive political ignoring of the story and the explicit admission by the heads of the PMO and Senate that Senator Duffy’s living expense claims were “entirely within the rules” changed to an active “mistake” and “must repay” “scenario”. Mr. Bayne takes the position that Senator Duffy never believed that he made a mistake and was forced/pressured to utter scripted lines to that effect. Furthermore, Mr. Bayne maintains that Senator Duffy never in truth made the payment but rather it was Prime Minister Harper’s Chief of Staff, Nigel Wright, who personally and privately and secretly paid the funds for purely political damage control reasons. (emails #155; 346) 

[913] Both Nigel Wright and Chris Woodcock confirmed the pressure that they applied on Senator Duffy in order to achieve their desired political results. 

[914] Mr. Bayne advised the court that the payment was made through Senator Duffy to make it look like Senator Duffy was paying it and thereby advancing the PMO’s political agenda. The payment was also designed to make it appear that Senator Duffy was repentant for this mistake. 

[915] Mr. Bayne stated that the entire scheme designed by the PMO was intended to deceive the Canadian public and the Tory base. 

[917] The media interest has not gone away. Senator LeBreton points out to Senator Duffy that there is nothing to be gained by speaking to Mr. McGregor. (email #13) 

[918] Senator Carolyn Stewart-Olsen observes that the situation has become very troubling. (email #16) 

[919] Senator Carolyn Stewart-Olson expresses her support for Senator Duffy assuring him that she has his back. (email #17) 

[920] It is clear that Senator Duffy wants to provide a press release (Email #22) but was advised by Senator LeBreton (Cabinet Minister and Government Leader in the Senate) to hold off the release pending a decision from the PMO. (email #24) Senator Tkachuk is involved in the ongoing discussions. 

[921] Nigel Wright is of the belief that the Duffy Affair is going to end badly early on in the proceedings. (email #21) 

[922] Senator LeBreton now asks Senator Duffy to put something out in response to the stories. (Email #20) and the PMO and Senate hierarchies are becoming engaged in attempting to quell the rekindled interest in Senator Duffy’s residential/expense issues.

 [924] To respond to the renewed stories/perceptual problems that pose potential serious political damage, a two – pronged strategy is developed in concert between the PMO and Senate leadership: Senators Tkachuk/Stewart-Olsen/LeBreton. (emails #25-41) 

[925] The first prong of the strategy was announcing the plan to hire outside legal advice regarding Senator Duffy’s residency and independent auditors to review the expenses issues. This approach had the advantage of buying time. (Feb 8, 2013 comments by Senator Tkachuk) (Tab 4, Exhibit 45b) (emails # 28, 31 and 32) 

[926] This approach had the perceived bonus of preventing Senator Duffy from “going squirrelly on a bunch of weekend panel shows.” (email #28)

[937] The command/control edicts and language of the Chief of Staff of the Prime Minister are revealed (Emails #54, 55, 59, 62, 67, 74). According to the Defence, it is clear that nothing is to happen without all other actors (PMO subordinates, Senate leadership and staff) clearing “every move” with “us”/PMO. Senator LeBreton is scolded by Nigel Wright/PMO for acting without prior PMO approval. Nothing is to be set in motion “without knowing where we want it to end up and how we will make that happen.” The PMO/Nigel Wright is determined to impose (“force” in his own statement to the police) on Senator Duffy the political damage control strategy of “mistake-repay”, to overcome Senator Duffy’s resistance to this strategy and to “make it happen.” 

[938] Mr. Bayne maintains that pressure to accept the PMO strategy was repeatedly applied to Senator Duffy from the highest levels (by the Chief of Staff of the PMO, by the Prime Minister, by Senate leadership working in concert with the PMO – emails 53, 54, 55, 64, 72, 74, 106, 109, 110 and Nigel Wright’s forceful intervention on February 13th when Senator Duffy tries to argue his case personally to the Prime Minister), but still Senator Duffy resisted and made clear his own true will – to assert the lawfulness of his living expense claims as within the existing Senate rules structure. 
[942] On February 15th (email #95) Senator Duffy argued his case to Nigel Wright through a forwarded P.E.I. court decision. All of this explicit resistance to the PMO’s political strategy Senator Duffy continued even after the Prime Minister’s “ruling” (Nigel Wright’s own word) on February 13th. Senator Duffy’s continued resistance to the PMO’s damage control scenario “deflates” Mr. Wright. The next week this deflation turns to outright anger as Senator Duffy’s resistance “pissed” Nigel Wright

[943] Even as Senator Tkachuk (Chair of the Standing and Steering Committees) publicly referred the matter of Senator Duffy’s living expense claims to the independent auditor Deloitte (email #44), he publicly states that the reference to an outside auditor is “because the Senate doesn’t want to appear as if it is hiding anything.” Senator Tkachuk also publicly states that the existing Senate rules on residency and related expenses may need to be changed, that definitions are lacking and that “rules that made sense a long time ago don’t necessarily make sense today” (Exhibit 45b, Tab 4). Senator Tkachuk (email #94; Exhibit 45b, Tab 11), in correspondence to Senator Duffy’s lawyer describes the “obvious overarching public interest” in “an independent external review and opinion” (Deloitte) to the “public’s trust and confidence in Parliament”. 

[944] Senator Duffy’s constitutional eligibility to sit as a P.E.I. Senator is publicly challenged and clearly made a live issue (email #46; Exhibit 45B, Tab 5). This is an ongoing perceived vulnerability of Senator Duffy. 

[945] Mr. Bayne submits that the PMO’s willingness to direct and command conduct and outcomes as well as to manipulate due Parliamentary process to achieve their own political objectives is made clear by the extensive email exchanges concerning the writing of a constitutional definition of residency by the PMO in concert with Senate leadership (see emails #82-86; 90-93; 100-130; 138; 139). A so-called “test” is developed so the Defence says that is purely political, not principled: “We need to be sure that all of our Senators [Conservative Senators] will truly be on the right side of the bright line test” (email #90). Nigel Wright says “a prime objective is not to disqualify our sitting Senators” (email #102). Resolution of the constitutional test for residency is important to the PMO as a precondition to ending the “Chinese water torture”: “…all that stands in the way of Senator Duffy paying back his $32,000 and closing out this situation” (email #106). However, there cannot be “new facts” getting out to the public which “the PM does not want” (email #109). The PMO will “slam through” (email #110) their expedient residency test based on “practical/political” reasons (email #112) and if the Senate committees do not have the “right membership”, the “right Senators” will be conscripted to serve dutifully to deliver the scripted PMO test (email #109). Mr. Bayne stated that again and again the evidence supports the proposition that the PMO was determined to compel action (from Senate leadership, from individual Senators, from Parliamentary committees, from Senator Duffy) if necessary for political ends. Small wonder then, and no coincidence, that both Nigel Wright and Chris Woodcock independently described to the police (truthfully, they stated) that Senator Duffy had been “forced” to go along with the PMO’s “mistake-repay” scenario.

[950] The Senate break week found Senator Duffy alone in P.E.I. He was scared and vulnerable: Nigel Wright described Senator Duffy as “a scared man”; he “thinks we’re like he thinks I’ve threatened to kick him out of caucus and force him to repay the money”. “He thinks his very existence as a Senator is at risk”

[961] On Wednesday, February 20th, however, Senator Duffy was still resisting. He wanted to see any purported legal analysis that his living expense claims were in violation of existing Senate rules (as he believes they were not) and his lawyer wanted to see the mandate to Deloitte (she had already written seeking a meeting so that Senator Duffy could provide documentation to Deloitte) (email #141).

[962] Nigel Wright responds that Deloitte will find against Senator Duffy (email #142), but does not advise Senator Duffy that his own legal analysis (done February 7th, 2 weeks prior) supports Senator Duffy’s view that his living expense claims are probably all within the existing Senate rules.

[964] On the 20th, Senator Duffy confided in his own lawyer that Nigel Wright had called him on both the 19th and 20th. Senator Duffy advised his lawyer about all the “urging” calls/pressure he had been receiving, about the threats that he would be “alone” with respect to his own party, and about the media and the opposition being against him unless he went along with the proposed scenario. A further threat was made “obvious” to Senator Duffy by Nigel Wright, namely, that the Steering Committee (the majority of which consisted of Senator Tkachuk and Senator Stewart-Olsen, two members of the “small group” working on the scenario with the PMO) would declare Senator Duffy constitutionally unqualified unless Senator Duffy took “the dive” and acquiesced to the PMO’s mistake-repay scenario. (email #155 & 156). Nigel Wright even suggested to Senator Duffy that he listen to Mr. Wright rather than to his own lawyer (Ms. Payne) as he, Mr. Wright, was in a better position to determine the propriety of the living expense claims under the rules. Mr. Bayne found this approach by Mr. Wright to amount to cunning hypocrisy considering Mr. Wright’s own analysis supported the validity of those claims.

[965] Ms. Payne, Senator Duffy’s lawyer, replied the same evening to Senator Duffy, that she was “flabbergasted” at the pressure and tactics of the PMO. She agreed that “capitulating now in advance of Deloitte” was unwise and that she had so advised the PMO’s lawyer (Mr. Perrin). Ms. Payne described Mr. Perrin’s offer, on behalf of the PMO of media lines (“strategies around communication” from “communications specialists, very talented”). She also communicated to Senator Duffy that Mr. Perrin warned not to wait for (and cooperate with) the Deloitte audit. Ms. Payne pointed out that the PMO counsel “started to heat up his tone” and encouraged Senator Duffy to “move fast”. Mr. Perrin offered support on constitutional residency (eligibility) issue. (emails #157, 158)

[968] The PMO, by noon on the 21st, sensed Senator Duffy’s capitulation (“…sounds like they will consider it”) (email #160). Immediately the PMO group seized the momentum and Nigel Wright directs that the scripted capitulation lines be sent directly to Senator Duffy (he doesn’t like the “optics” of them going to Senator Duffy’s lawyer) and that Senator Duffy be “walked” through both the lines and “the support we would provide” (all the inducements from the PMO and Senator Tkachuk: withdrawal from Deloitte; constitutional eligibility supports; supportive media lines; Mr. Wright’s offer of cash for repayment from the Conservative Party of Canada) (email #161).

[971] By the evening of the 21st, Nigel Wright reported that “Mike is going to do this” (the breakdown had been achieved) but he wants to see the Janice Payne email which is forthcoming “summarizing our conversations” (Nigel Wright’s with Senator Duffy; Ben Perrin’s with Janice Payne) (email #176).

[972] Within forty-six minutes, Janice Payne’s “summary” of the conversations (of the 19th and 20th) arrives, as Nigel Wright predicted (email #175). Mr. Bayne contends that this is not, as suggested by the Crown, a list of demands emanating from Senator Duffy. It is a summary of the terms of capitulation (the inducements) all of which emanated directly from Mr. Wright, the PMO’s scenario and Senator Tkachuk. Senator Duffy capitulates on the terms and conditions set by the PMO and Senate leadership. Mr. Bayne stresses that Messrs. Wright and Woodcock would never have stated that Senator Duffy was “forced” to go along with the PMO scenario if, as the Crown seeks to argue, Senator Duffy had authored the terms. Nigel Wright’s immediate response to this summary (to his PMO subordinates), evidences that Mr. Wright has pre-arranged these terms; they are his terms of capitulation. Mr. Wright’s frank concession that these were “forced” on Senator Duffy is important evidence as to their true provenance. (email #181).

[975] The tone and words of the emails stress that Senator Duffy must publicly capitulate “imminently” (email #202); “I am pressing them hard to finalize this” (email #215); “We should finalize this” (email #215); “We should go today” (email #218); “We should GO” (email #225).

[977] Mr. Novak, the PM’s Principal Secretary, tells Senator Duffy that it is “Best to seize the initiative and not wait for [the] audit” (email #207). Senator Duffy’s resistance and efforts with Mr. Novak persist until 4:28 p.m., only minutes before he is ushered in front of the pre-arranged TV crew to utter his scripted message (emails #230, 231) of capitulation.

[978] Nigel Wright directs that Senator Duffy also must (“has to”) send a letter to the Steering Committee “mimicking his public lines” of capitulation to the PMO scenario (emails #208, 240, 246, 247, 248).

[992] On Friday, March 1st, Nigel Wright directs a clearly compliant (“I am always ready to do exactly what is asked”) Senator Stewart-Olsen to “stay close to Chris [Woodcock] and Patrick [Rogers]” and “make this happen” – “Deloitte to state that that matter is resolved.” Nigel Wright orders this because “despite agreement to this in advance from you, Marjory [LeBreton] and David [Tkachuk] no one on the Senate side is delivering.” (emails #287, 288)

[993] When Senator Stewart-Olsen advises Nigel Wright that the Deloitte audit of Senator Duffy’s living expense claims “will not be pulled”, Nigel Wright delivers to Senator Stewart-Olsen the precise script of the Deloitte report conclusion acceptable to the PMO (to serve its political purposes), to be conveyed by Stewart-Olsen to Deloitte: “Thanks Carolyn. I agree that the auditor (it’s not really an audit) should report. But the report can be – if Kanata were a primary residence, here is how much would be owed. It shouldn’t conclude that “Kanata is the primary residence”, and it doesn’t need to conclude that because Mike has committed to repay the money as if that were the case. I could use your help getting them to understand that and making it happen. N” (email #291).

[1003] Nr. Bayne notes that Nigel Wright, with the concurrence of Ray Novak, also directed the management of Ms. Payne, both through his directions to Ben Perrin and in his direct, personal telephone conversation with her on March 22nd (emails #297-300, 317, 318, 320, 327, 330, 331, 348, 350, 351, 353, 359-364, 367-375, 377, 378, 382-385, 394-397, 398- 405, 407-410, 420-429). Mr. Wright, who did not “care about her expectations” (email #299), directed various approaches that Mr. Perrin should take with Ms. Payne, including an “aggressive tone” (email #317), “friendly advice” (email #317), stalling and/or “placating” Ms. Payne (email #300), threatening her: “let her know that if she discusses any understanding with anyone outside of PMO, we will not hesitate to correct any statement that is not 100% accurate” [and the evidence has clearly revealed the PMO view of the truth and accuracy] (email #363). Mr. Wright directed the content of a letter Ms. Payne should write to Deloitte, while maintaining ‘plausible deniability’ that he told them (Senator Duffy and Ms. Payne) not to cooperate with Deloitte (email #374). Mr. Wright’s call with Ms. Payne on March 22nd is, in his own words, intended to “persuade her to persuade Senator Duffy” to carry out the scenario. [1004] In early March, Mr. Wright had decided that he will personally provide the “repayment” money the scenario requires, although it must appear to have come from Senator Duffy as an act of honourable Tory contrition, and on March 8th, he clearly and succinctly advised his subordinate (Mr. Woodcock) in a brief email sent directly and only to Mr. Woodcock that “For you only: I am personally covering Duffy’s $90K”. Mr. Woodcock claimed that he read the rest of this brief email from his boss, but not this line (email #346). Mr. Woodcock responded to this email within 6 minutes (email #347).

[1014] By Wednesday, April 17th, however, a media story appears querying whether Senator Duffy has yet repaid the living expense amount as he publically promised in his (scripted) February 22nd TV statement (email #434). Senator Duffy has been “basically cornered” in an elevator and asked if he has repaid. Mr. Bayne explains that Senator Duffy, who has been repeatedly told to keep quiet about the scenario, told not to engage the media and not to mention the PMO, refers the journalist to Senator Tkachuk, the Chair of the Internal Economy Committee (who knows that the $90K has been paid because he received the cheque: see Exhibit 45b, Tab 26). Senator Tkachuk has apparently also declined to confirm to the journalist the payment, instead referring the journalist to Senator Duffy. No one knows what the PMO will want them to say. Senator Duffy keeps repeating “I’m a man of my word”, precisely as instructed by Senator LeBreton (emails #437-448: “please keep repeating that you are a man of your word) and by Nigel Wright: “he should repeat that he is a man of his word if he gets ambushed and, better yet, not get ambushed”. (Email #449). Early on Friday April 19th, the PMO (Mr. Woodcock) suggest the “man of his word” line be maintained (emails #450-454) and scripts media lines using that phrase verbatim. Senator LeBreton suggests in the afternoon of the 19th that because “there has been zero interest in this today” no further statements be issued until after the weekend (email #456). But the PMO (Mr. Wright & Mr. Woodcock) decide later in the afternoon of the 19th (emails #458 & 460) that Senator Duffy must issue a statement because the story now is a “schmozzle”. The PMO scripts a statement that reads “I can confirm that I have repaid these expenses” (email #461), an assertion Nigel Wright knows to be untrue since Mr. Wright personally and as a Mr. Bayne contents, for purely political reasons, paid the $90K. As the 19th ends, Mr. Woodcock confirms that “Duffy will issue this”… (Email #463). The Defence reiterates that, the PMO, through careful misrepresentation continues to attempt to write the “final chapter” of their political scenario.

[1029] The email traffic that has been produced at this trial causes me to pause and ask myself, “Did I actually have the opportunity to see the inner workings of the PMO?”

[1030] Was Nigel Wright actually ordering senior members of the Senate around as if they were mere pawns on a chessboard? 

[1031] Were those same senior members of the Senate meekly acquiescing to Mr. Wright’s orders? 

[1032] Were those same senior members of the Senate robotically marching forth to recite their provided scripted lines? 

[1033] Did Nigel Wright really direct a Senator to approach a senior member of an accounting firm that was conducting an independent audit of the Senate with the intention to either get a peek at the report or part of the report prior to its release to the appropriate Senate authorities or to influence that report in anyway? 

[1034] Does the reading of these emails give the impression that Senator Duffy was going to do as he was told or face the consequences?

[1035] The answers to the aforementioned questions are: YES; YES; YES; YES; YES; and YES!!!!! 

[1036] The political, covert, relentless, unfolding of events is mind boggling and shocking.

[1037] The precision and planning of the exercise would make any military commander proud.

On the Immaculate Bribery charge:

[1092] The Crown’s theory with respect to the bribery count is very simple. Senator Duffy solicited funds and then voluntarily accepted Nigel Wright’s money thereby elevating his conduct to the level of a criminal offence.

[1093] In this case, the Crown seems to want to brush aside the particular facts of the case out of hand and turn a blind eye to Senator Duffy’s particular circumstances in any possible “Scenario”.

[1094] The Crown directs me to focus on their theory keeping in mind the breadth of Mr. Bayne’s cross-examination of the Crown witnesses that were called and the evidence given by Senator Duffy in this matter.

1095] I have no difficulty focusing on the Crown’s submissions and keeping them at the fore when I am considering the evidence and submissions that were tendered in his case. However, I am baffled by the reference to Mr. Bayne’s thorough cross-examination and the testimony given by Senator Duffy. I thought that Mr. Bayne’s cross-examination provided many thought- provoking points for my consideration and that the evidence of Senator Duffy was most compelling. The only question that occurs to me is, if there was something of particular concern about Senator Duffy’s evidence about the $90,000.00 why was there no cross-examination on it? 

[1096] Was there a “Scenario” or was this a case of Senator Duffy demanding or asking for funds and eventually accepting them for his benefit?

[1097] I do not accept the premise that Senator Duffy’s comments to Mr. Wright and Mr. Woodcock about not having the funds to facilitate Mr. Wright’s master plan amounted to any demand for reimbursement of his living expenses. This comment can be viewed as just another example of Senator Duffy’s reluctance to buy into Mr. Wright’s plan period.

[1098] I find that there is an overwhelming amount of evidence from the Crown witnesses, the emails and from Senator Duffy that the “Scenario” theory put forward by the Defence was alive and well throughout this drama.

[1099] 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?

[1100] To say that the circumstances of this case are unusual amounts to gross understatement.

 [1101] The beginning of the eventual payment goes back to the murky uncertainty regarding Senator Duffy’s claim regarding his primary residence and claims resulting from that designation.

[1102] The underlying message of, “We’re asking, basically forcing someone to repay money that, uh. That they probably didn’t owe and I wanted the Prime Minister to know that, be comfortable with that:” keeps on resonating with me.

[1107] Senator Duffy continued throughout to maintain that he did not owe any money and that all his expenses were proper. He wanted the Deloitte firm to hear his side of the story. He begged not to have to go through with the plan.

[1108] The PMO employed a two – pronged approach to deal with Senator Duffy. The primary approach involved the use of a steady stream of threats and pressure being applied from all quarters. These have been well documented throughout this judgment.

[1109] The other approach involved using the “do the right thing” message. It is interesting that no one ever suggested doing “the legal thing”. The message was always to “do the right thing”. I find that the “do the right thing” message had only one meaning. Senator Duffy was to do the politically right thing by admitting “his mistake” and repaying back the accrued living expenses

[1110] The PMO were also very active working behind the scenes to get all their ducks in a row. They attempted to get the Conservative Party of Canada to provide the funds for the repayment. When that failed, Nigel Wright stepped up and provided the funding out of his own pocket. He explained that the $90,000.00 payment did not impact his bottom line. It seemed that this sum was a mere bagatelle. Mr. Wright certainly did not view his financial contribution and payment as untoward behaviour. He took the position that he had made an agreement with Senator Duffy and he was determined to see that his political solution to the “Duffy Problem” came to pass. I think it is fair to say that the only expectation on the part of Mr. Wright was that a nasty political thorn would be removed from the body politic.

[1111] I find based on all of 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. 

[1112] I find that Senator Duffy did not demonstrate a true acceptance of the funds and he did not accept them voluntarily. Throughout the entire “Scenario”, Senator Duffy was kicking and screaming to have the issues dealt with in an appropriate forum. However, as a result of the coordinated and threatening efforts of the PMO, his free will was overwhelmed and he capitulated.

[1113] I find that there was no corrupt acceptance of the funds by Senator Duffy and he did not have the necessary elevated mental culpability or mens rea required to support a conviction on this count.

[1114] I agree that this entire “Scenario” was not for the benefit of Senate Duffy but rather, it was for the benefit of the government and the PMO. This was damage control at its finest.

[1115] Accordingly, count 29 is hereby dismissed

[1130] By February 20th, when Senator Duffy, according to Mr. Wright, is “hostile” to the “Scenario” terms, Mr. Wright says, “his lawyer has called Ben Perrin and reported to me, reported to Ben who reported to me that Senator Duffy was hostile to that report. And I was pissed about that”. Mr. Wright says, “I got angry”; “my telephone call with him on the 20th was a very challenging call”. Senator Duffy was “worried”, “scared” and “alone”. Senator Duffy “argued against that proposal on the 20th and I argued for it. And we had a very heated telephone conversation”. Mr. Wright claims that suddenly, immediately after this angry, heated argumentative, pissed off call on the 20th, “… on the 21st he agreed to it” (the Scenario). Mr. Bayne poses the question, “Now what would have caused such an abrupt and inexplicable change in Senator Duffy? – threats by Nigel Wright as Senator Duffy claims, or some inexplicable agreeableness on the part of the Senator? Mr. Wright’s further evidence helps to fill in the blanks in his evidence (as do emails #155/156 and #157/158, between a client confiding in his lawyer and the lawyer’s response). Mr. Wright, in his statement to the police told them that Senator Duffy was “a scared man, um, flailing around”, that Senator Duffy “thinks I threatened to kick him out of caucus and force him to repay the money”. He told the police that Senator Duffy, after talking to Mr. Wright, “thinks his very existence as a Senator is at risk”. Now why would Nigel Wright think that Senator Duffy believed those things unless Mr. Wright, “pissed off” at Senator Duffy’s resistance to the Scenario, resorted to the very threats that the emails detail? Mr. Wright admits that he told the police that “We’re asking, basically forcing someone to repay money that uh, that they probably didn’t owe. And I wanted the Prime Minister to know that, be comfortable with that”.

[1133] Mr. Bayne notes that there are many examples of Mr. Wright’s testimonial unreliability. He claimed that Mr. Novak “was not on the call” that Mr. Wright made March 22, 2013, to “persuade” Ms. Payne “to persuade Senator Duffy” to go along with the “Scenario” as “the right thing to do”. In this call Mr. Wright stated to Ms. Payne that he personally would provide the “repayment” funds. Mr. Novak’s public position was that he did not learn this until May, when the matter was exposed in the media. Mr. Novak, “popped in and out” of the office as Mr. Wright spoke, claimed Mr. Wright (protecting Mr. Novak’s – and the Prime Minister’s – deniability). In detailed evidence, Mr. Perrin refuted Mr. Wright’s evidence: Mr. Novak was not only present throughout the call, was present when Mr. Wright said that he was personally paying the “Scenario’s” “repayment”, but Mr. Perrin looked directly at Mr. Novak when Mr. Wright uttered those words. Of course, there is email #400 from Mr. Wright to Messrs. Novak and Perrin, the day after the call, advising that “I will send my cheque on Monday.” Mr. Bayne is of the opinion that Mr. Wright’s evidence, at its charitable best, is unreliable (Evidence N. Wright, August 18, 2015, pp. 98 – 111; Evidence B. Perrin, pp. 85-92).

[1136] Mr. Wright stated that while much of what he did in directing and executing the PMO’s “Scenario” – misleading statements, secret arrangements with Senator Gerstein and the Conservative Party to “fund” the repayment, telling the media, and Canadian public, that the Conservative Party would only ever fund Senators’ expenses for “Party work” (while setting up such a “repayment” for non-Party work), secretly defeating Senator Duffy’s attempt to meet and cooperate with the independent auditor, the improper, secret, backroom approach to Deloitte – did not meet “the high standards of transparency and clarity”, nevertheless “I thought that was okay.” Mr. Bayne emphatically proclaims that Mr. Wright is a witness whose evidence is not “okay”. He states that Mr. Wright professes piety but practices deception and adheres to the motto, ‘The ends justify the means’. Mr. Bayne notes that there are other examples of the unreliability of Mr. Wright’s word as a witness. When he claims that he never uttered, or at least never intended to utter (he hedges even this bet) the threats that Senator Duffy and email #155 say he did utter, he is no more reliable than when claiming that having Senator Gerstein secretly go through personal back doors into the independent auditor to suggest an audit conclusion was just an attempt to have Senator Tkachuk speak with Deloitte – offensively ludicrous and unreliable. Mr. Bayne concludes that Mr. Wright proved himself unworthy of belief (Evidence N. Wright, August 19, 2015, pp. 26-33).

[1137] Mr. Woodcock told the police that “Duffy was the one that we had to force him, you know, to convince, to – to persuade to go out and repay.” Mr. Bayne points out that like Mr. Wright, Mr. Woodcock spent great testimonial energy trying to extract himself from his own words. He tried to turn the word “force” into “agree”, suggesting that Senator Duffy had actually agreeably “collaborated” on the “Scenario”. His evidence was that “…force, persuade convince. I said ‘agreed’. I believe I said ‘agreed’. I’d have to double check, but I used those terms interchangeably, because they carried … for – for my description of the event … they carried … the same meaning.” For Mr. Woodcock “force” means the same as “agree”. On this, as on so many other parts of his evidence, Mr. Bayne suggests that Mr. Woodcock showed himself to be a witness whose evidence was unworthy of the Court’s reliance (Evidence C. Woodcock, August 25, 2015, pp. 22-26).

[1138] Mr. Woodcock claimed that, although he received email #346, a brief email from his boss, Nigel Wright, advising that Mr. Wright was “personally covering Duffy’s $90K”, an email directed, not in a chain, but solely to himself and highlighted by the boss “For you only”, and although he read the email and responded directly to it within six minutes (email — 289 — #347), he never read the line that reads, simply and clearly, “For you only: I am personally covering Duffy’s $90K”, he never saw those eight words and a number. This, of course, would serve to protect Mr. Woodcock’s deniability (and that of the Prime Minister to whom Mr. Woodcock spoke every day about every issue that ‘might ruin the Prime Minister’s day’), that he was unaware that it was Mr. Wright’s money funding the PMO’s Scenario strategy. Mr. Woodcock was, however, compelled by the hard facts to agree that, as this email came directly from his boss, he would “prioritize” it. Mr. Bayne contends that because Mr. Woodcock answered it immediately he would have had to have read it. It is short, direct, clear. It was different from the torrent of emails that Mr. Woodcock received daily because it was on his “personal gmail” account. To respond to the email it was, he had to agree, important that he knew what it had said – his job was “to know the facts” in order to be able to “respond effectively”. He claimed “I just simply didn’t see the line.” Mr. Woodcock has to claim this. If he doesn’t, then he knew and the Prime Minister knew on March 8, 2013, that Nigel Wright, the Prime Minister’s Chief of Staff, was funding the “repayment Scenario” drafted by the PMO, contrary to the Prime Minister’s public statements.  If it is difficult for a reasonable person to believe Mr. Woodcock’s evidence of inexplicably not seeing this line in a short email – not buried in the middle but standing out as the last line and headed with the red attention flag, “For you only” – Mr. Woodcock himself recognized the unbelievability of his own evidence: he told the police it was “hard to believe” he hadn’t read that line. He agreed that there is usually “a reason if something’s hard to believe.” Mr. Bayne contends that Mr. Woodcock’s evidence on this, as on so many matters, is not worthy of belief (Evidence C. Woodcock, August 24, 2015, pp. 132-162).

[1161] I have reviewed Mr. Bayne’s very thorough and thoughtful submissions on the defence of officially induced error and agree with them in their entirety

(That is about as close as Vaillancourt can get to finding that, yes, Stephen Harper knew everything. He was in on it all along.)

[1162] The facts in this case can define officially induced error.

[1163] Accordingly, this charge would have been stayed if I had not dismissed it on the merits.

[1208] I find that Senator Duffy had the consent of the Prime Minister through the PMO and his Senate leadership to go along with the “Scenario”.

[1209] I find that Senator 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 

[1210] I find that there was no true acceptance of any benefit as per my findings and submissions in connection with Count 29.

[1211] Accordingly, Count 30 is hereby dismissed.

[1212] In the alternative, for reasons contained under the heading, “Officially Induced Error” in Count 29, Count 30 would have been stayed if I had found Senator Duffy guilty of this charge.

On the final count of the indictment, Count 31:

[1237] I do not find that Senator Duffy was trying to thwart or avoid cooperating with the third party auditors. I do find that Senator Duffy was more than willing to meet with Deloitte and explain his position. I find that the PMO did not want this to happen and they endeavoured to prevent such contact.

[1238] The Crown submits that Senator Duffy wanted to shield himself from scrutiny of his very eligibility to sit as a Senator from Prince Edward Island. I do not agree. Quite frankly, this whole area is not before the court and 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.

[1239] Mr. Neubauer stated that Senator Duffy’s actions were driven by deceit, manipulations and carried out in a clandestine manner representing a serious and marked standard expected of a person in Senator Duffy’s position of trust. I find that if one were to substitute the PMO, Nigel Wright and others for Senator Duffy in the aforementioned sentence that you would have a more accurate statement.

End Note: We may have occasion to read these findings again in future litigation against the scammers who tried to use Duffy and then bury him. Steve and his nest of vipers should have known that if you're trying to bury a guy like Duffy, don't dig a shallow grave.


Anonymous said...

The kicker is the last paragraph, # 1239.
So much for Christian halo over Mr. Wright head.
But let's not get carried away with criminal charges dropped. Behaviour which is non-criminal might also be unethical, at least by my standards...

Anonymous said...

I have long admired your blog. This is the reporting Canadians will not find anywhere else. Although it is almost exclusively quoting the Honourable Mr. Justice Vaillancourt your judgment is impeccable.

"[1209] I find that Senator 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."



The Mound of Sound said...

@ A..non. I don't expect Wright will be returning to Canada anytime soon. I'm sure he likes England more by the day.

Pamela Mac Neil said...

Thanks so much for posting this Mound. I read it last night and what was really refreshing is that you don't have to have a legal background to understand it. In fact I found it legally fascinating. I see why people study law. I found the treatment of Duffy by Harpers chief thug Nigel Wright and his friends very, very disturbing. Duffy had 3 things going for himself at the outset. Donald Bayne, Justice Vaillancourt and the truth, of which Donald Bayne so brilliantly brought forth and of which Justice Vaillancourt used to explain step by step how he arrived at his verdict. Both were very impressive men.