Today, on his last day testifying in his own defence, some flashes of the man inside showed through the mask of the seasoned performer. It has been a brutal, battering exercise in what Duffy has described as a public shaming for having lived by the rules of a very dysfunctional institution. The Crown and the Mounties see it differently. Now all that matters is how Mr. Justice Charles Vaillancourt sees it.
Looking at Duffy from the hard wooden pews facing the bench, it’s easy to imagine that the troubles of the Senate come down to the familiar figure taking the stand for the last time. Easy to imagine, but false.
Though a minor player in the grand scheme of things plaguing the Red Chamber (23rd on the list of Senate big spenders), Duffy has undeniably become the public face of the Senate scandal. That comes in part from how successful former PM Stephen Harper has been in vilifying his former star political fundraiser. (Of course, I meant to say “friend-raiser.”)
Lots of public figures are symbolically burned in public. But not many are hoisted in effigy in the nation’s capital as money-grubbing scoundrels floating high above the Ottawa River like evil genies.
Not many are denounced by their own boss and his stooges before their day in court. Not many face guilt by editorial before the allegations against them have been tested in court.
Remember, there was even public sympathy for Oscar Pistorius; dog-buying is not exactly on the level of culpable homicide, but Duffy’s public image is likely beyond the redemptive powers of Hill & Knowlton. When Stephen Harper’s bus runs you down, your walking days are usually over.
Harper’s animus against Duffy is easy to understand; the former PM didn’t like anyone in particular, except the guy in the shaving mirror, and Duffy had committed the high-crime of temporary insubordination.
But some of the media animus against the once popular former broadcaster is curious. At the legal level, there is no White Christmas for Mike Duffy. It’s not as if he’s gotten away with something. There’s a reason this guy walks around with a little pink bottle of nitro in his pocket.
There are only three possible outcomes for Duffy in 2016. He and his wife Heather likely will ring in the New Year wringing their hands over which one it will be — the Bad, the Worse or the Awful. At this stage, there is no Good on offer. The senator could be convicted of all, some or none of the 31 criminal counts brought against him by a Crown that has failed to sparkle in this case.
It is clear that the Crown’s main goal on cross-examination is to present Duffy as an unreliable witness who is a stranger to the truth. He shouldn’t have an OHIP card. He gets dates wrong. He forgets who was present at meetings … eight years ago. He forgets whole meetings. And occasionally, his remarks are a footrace between bombast and hyperbole tinged with self-righteousness.
Ergo, his evidence is shaky at best, and at worst, slyly mendacious. Goodness gracious, as we learned this week from the gimlet-eyed Crown prosecutor, he may even be guilty of planning his retirement! Still, there were tough facts to face, like the OHIP card, a few funerals, and that personal trainer. But do any of them amount to crimes?
The prosecution has broadly suggested that Duffy had always sought out a Senate appointment. The timing of his ascent to what turned out to be the place of his execution was suspiciously close to his re-broadcasting of an unflattering TV interview featuring then-Liberal leader Stéphane Dion.
That interview, conducted by ATV’s Steve Murphy, may have helped to discredit Dion and boost the Tory cause during that year’s federal election. After all, the Con line in 2008 was that Dion was Not a Leader; fumbling a question on TV five days before the national vote was like Robert Stanfield dropping that darned football and the 1974 federal election along with it.
If Duffy is acquitted of all charges, he may face an appeal by the Crown. If the Crown doesn’t appeal, the senator will face another mountain to climb: reclaiming his seat in the Senate. Since the Senate can now expel members for bringing shame on the Red Chamber, (a much lower threshold than a criminal conviction) acquittal does not immediately mean reinstatement. In other words, Duffy’s battle won’t be over — it’ll just move to a different arena.
If Duffy is convicted of any of the counts, he’ll have the option of appealing the court’s decision — an alternative that’s really just another form of punishment. This trial already has run longer than a moderately successful Broadway play. There must be just about as much left in the accused’s psychic tank as there is in his bank account.
The worst outcome for Duffy would be conviction on a few counts, which (appeals to one side), would give him a criminal record and a one-way ticket out of the Senate. It could also mean jail time.
But even at the highest threshold of his alleged crimes, it is hard to see how society would be better off with Mike Duffy doing time. Keeping him from attending another allegedly illicit funeral doesn’t seem to quite rise to the level of protecting the public.
My own unschooled opinion is that nothing the Crown has produced rises to the level of a crime — and that is most especially true of the alleged $90,000 ‘bribe’ the senator took. No one, including the Crown or the RCMP, has given a satisfactory answer to the obvious question: If the bribe was received, doesn’t that mean the bribe was given as well? In other words, why was the decision taken to make Nigel Wright, the PM’s former chief of staff, a witness and not a co-accused?
Like Michael Sona before him, Duffy is at the heart of a political trial. The Senate’s abysmal administration and rules are what is really driving this process. While the country now knows every detail of his life — from his dining habits to the unnerving revelation that there is a shower in his renovated cottage in Cavendish — some of the key characters have never accounted for their part in the chain of events that pushed Duffy off his pedestal of insider power and influence. Why was Duffy Humpty-Dumptied in the first place?
That takes us into the parallel universe of the politics of Duffygate. We have Duffy’s sworn testimony that the answer is first and foremost Stephen Harper. It was the PM who told Duffy owning land in P.E.I. was all the constitutional requirement needed to become an Islander.
The message is unmistakably clear: Harper didn’t care if Duffy had lived in Ottawa for thirty years, so why should Duffy? After all, Carolyn Stewart Olson took a very similar path to the Red Chamber. So here is the question for Harper: If your appointment wand transformed Duffy from an Ontarian into an Islander, why would you object to his claiming per diems that matched the status you yourself had given him — and perhaps imposed on him?
Why wasn’t Ray Novak there to explain why both he and Nigel Wright advised Senator Duffy not to co-operate with the Deloitte audit? And why did the Senate shut Duffy down when he wanted to go before the Senate audit committee or the Deloitte auditors to answer their questions and provide documentation?
What was Senator David Tkachuk thinking when he leaked information out of the Senate’s forensic audit to people who were being scrutinized? On April 16, 2013 Tkachuk told Duffy that auditors had discovered per diem claims for a ten-day period while the P.E.I. senator was on a cruise in Florida. The Deloitte audit itself was not officially released until 13 days later on April 29, 2013. Tkachuk was co-chair of the Internal Economy Board.
Finally, what business did Harper’s PMO have ordering and getting the removal of certain paragraphs from a Senate report? Here is how former Senate Clerk Gary O’Brien put it to the RCMP: “… Obviously it was, that was a political decision, that’s a political decision.” As for the PMO’s advice to Duffy to not co-operate with Deloitte, O’Brien found that to be “inappropriate” — and why wouldn’t he?
“I think the obligations of the Senate as the Legislature would override the Executive, you know, on this one. Because this is an audit done, ordered by Internal Economy, you know.”
For those who find Duffy’s behaviour appalling, there may be a sense of schadenfreude in watching his agonies. But what is wrong with the Senate runs much deeper than the sins and peccadilloes of a single member.
It is one thing to make an example of someone. It is another to confuse that with justice when half the players in this tawdry drama have simply walked away from their deeds.
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Author: Michael Harris
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