One of the prosecutors, Mark Holmes, said that he didn’t want Duffy judged on a legalistic interpretation of opaque Senate rules and policies, but rather on the basis of “common sense”.
I wonder if the RCMP investigation would have been acceptable to the Crown had it been based on “common sense” rather than, say, the letter of the law? Who knows? Perhaps it was.
Common sense helps people quickly navigate the simpler elements of their lives — crossing a road without getting hit, not texting while driving, turning down the music when those not at the party are trying to sleep.
Common sense is almost always about little things, simple things. And the foundation of knowledge upon which it rests is often dubious. “Common sense,” Albert Einstein wrote, “is nothing more than a deposit of prejudices laid down by the mind before you reach eighteen.”
Which is why common sense is very dangerous in a courtroom. A criminal court is a venue where justice should be truth in action — not a vacuous appeal to common sense and its train of tawdry emotions. “Common sense” works well in a range of situations. But it can be a super-highway to snap judgments, faux revulsion and the lust to vilify when it is misapplied. Applying common sense in a criminal case, rather than legal and evidentiary reality, is a mistake. It’s why Duffy is already swinging from the hanging tree in most media coverage.
No one likes to see bigwigs slugging back $16-a-glass orange juice on the taxpayer’s dime, doling out public money to family members, charging for meals in their own homes, devising sneaky-looking administrative arrangements and out-Dingwalling David in a whole range of what look like personal entitlements that would embarrass a sultan.
But common sense is not much help in the far deeper dive it takes to get to the bottom of things. And surely getting to the bottom of things is the very essence of the task before Judge Charles Vaillancourt.
Mike Duffy’s alleged transgressions occurred in a place that runs on its own rules. If there’s one thing everyone has learned from this trial so far, it’s this: Those rules have nothing to do with common sense. So they require an investigation based on the reality of rules and process in the Senate. And not retroactively-applied ones, either.
Here is what the late astronomer and scientist Carl Sagan had to say about the sophisticated process of finding the truth:
“The truth may be puzzling. It may take some work to grapple with it. It may contradict deeply held prejudices. It may not be consonant with what we deeply want to be true. But our preferences do not determine what’s true.”
Unless you’re Stephen Harper. And so Donald Bayne is grappling with the case, painstakingly, witness by witness. He has made it the legal version of a street-fight on behalf of a much maligned client. He will not hurry. He will challenge and challenge. He is trying to demonstrate beyond a shadow of a doubt that by reference to the Senate’s own rules, what Duffy did is not only not criminal, it was permissible. And, like it or lump it, that includes participating in partisan activities — which was expected of senators.
Audits done for the Senate by accounting firms like Deloitte concluded that it was impossible under Senate rules in place at the time to determine the issue of Duffy’s residency.
Astonishingly, the Senate is now arguing parliamentary privilege in refusing to release a 2013 secret internal audit that might be of significance to Duffy’s criminal trial. Would that audit provide exculpatory information in Duffy’s case? Would it out other senators who had similar residency arrangements to the accused (as Nigel Wright noted), but without facing the full force of the police and the justice department? Would it show that the Senate knew back in 2010 it had a problem, but did nothing about it?
Whatever the Senate’s reason for impeding justice in a criminal case, it has an ally in the Crown, which is now arguing against admitting into evidence the report of the Senate Standing Committee on Internal Economy, which includes information from the 2010 Ernst & Young audit. Nor does the Crown want the other two audits admitted.
This is beyond absurd. Because it would impede an understanding of the truth in this case, what the Crown is pushing for could deprive Duffy of the right to defend himself with facts germane to his charges. Judge Vaillancourt can either accept the Crown’s argument that the Senate report is hearsay or mere opinion (and this is the same Crown which led a witness, Nicole Proulx, into hypothetical situations to solicit her opinion as evidence), or he can decide to admit the report and its references to the Ernst & Young audit. That latter course would better serve the interests of justice in what is already a heavily political, very complex case.
No one should forget that the prime minister himself appointed Duffy as a senator from P.E.I., even though the former broadcaster allegedly asked to be appointed from Ontario because of the residency requirements. This is vital information. Stephen Harper has strived to leave the impression that Duffy was somehow responsible for the residency crisis because he signed a declaration claiming to reside in P.E.I. But was that done at Harper’s insistence? Only Harper can answer that — and Duffy, when his time comes to testify.
Nor is it a small matter that Harper’s former chief of staff, Nigel Wright, told Duffy during negotiations over the now infamous $90,000 “gift” that senior members of the government, including the PM himself, would publicly endorse Duffy’s qualifications to sit as a senator from P.E.I. So who or what is at the base of the real problem here? Is it Mike Duffy, or those rotten Senate rules and administration? Or is it Harper? So far, Duffy is the only one answering for all this.
It is more than a little ironic that Duffy is facing a possible criminal conviction and prison sentence while the Senate is busy setting up a mechanism that would allow other senators who might soon face similar allegations to merely write a cheque for improper travel or living expenses and be done with it. And all in secret.
Amazing how a pending auditor general’s report can concentrate the mind. Michael Ferguson is set to table his detailed audit of Senate expense counts in early June and none of the good senators want to end up where Duffy is right now.
No place so cold as the shadow of the hanging tree.
Original Article
Source: ipolitics.ca/
Author: Michael Harris
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