While Duffy was acquitted of 31 charges of fraud, breach of trust and bribery, Stephen Harper and his former PMO were convicted in absentia of abuse of power.
Vaillancourt also was quite unsparing in his criticism of the Crown and the RCMP for bringing such a weak case to court. Absent evidence of criminal intent, the Crown rolled a lot of counts together into one big ball of mud, hoping some of it would stick. In the judge’s considered view, none of it did.
It should be also be said that Duffy was brilliantly represented by his defence lawyer, Don Bayne. Over more than 60 days in court, one government witness after another was turned into a witness for the defence — particularly when questioned about the rules (or lack of them) on senators’ expenses, office budgets and residency. Hard to interpret the rules where there are none to be found.
(A disclosure here: I was paid to write a speech for Duffy and briefly testified to that fact at his trial a year to the day before his acquittal. I’ve also known Duffy for more than four decades, as a friend in all circumstances.)
Over the past three years, Duffy has been tried in the court of public opinion, where the presumption of innocence was suspended, both in mainstream and social media. Vaillancourt’s judgment is a reminder that things work quite differently in a court of law, where guilt still must be proven beyond a reasonable doubt. Duffy’s accusers, the judge said, didn’t even come close.
“I don’t think I’ve ever been witness to such a resounding acquittal,” Bayne said. “There are near-misses and close calls. Justice Vaillancourt made plain — this was a resounding not guilty.”
Bayne also pointed out that public figures “are also entitled to due process”, adding that his client “has been subjected for the last two-and-a-half to three years to more public humiliation than probably any Canadian in history.”
That’s a bit of a rhetorical flight — but the important thing to remember here is that the judge wasn’t buying any of the shame heaped on Duffy. Nor was he buying any of the Crown’s case.
Vaillancourt wondered, for example, how the Crown could fail to call Sen. David Tkachuk, the former head of the Senate Board of Economy who had advised Duffy on residency rules and eligible expenses. He also wondered why the Crown, when it had Duffy on the stand, neglected to ask him about the $90,000 personal cheque he received from Nigel Wright to cover his ineligible expenses.
That, of course, points to the major question left unanswered by the prosecution in this case — the one that’s been puzzling the nation for a while now: How can you accuse Duffy of accepting a bribe as a public official without also accusing Wright, then PMO chief of staff, of offering one?
About that cheque: The judge found that Duffy was coerced into accepting it by “Nigel Wright and his crew” at PMO. In effect, they were buying Duffy’s silence and making the story go away. “This was damage control at its finest,” Vaillancourt wrote.
As for the Conservative leadership in the Senate, the judge found they turned the Red Chamber into a kangaroo court by voting to suspend Duffy without pay, suspending the presumption of innocence in the process. They also allowed the Upper House, part of the legislative branch of government, to be pushed around and manipulated by the executive in PMO.
“Was Nigel Wright actually ordering senior members of the Senate around as if they were pawns on a chess board?” the judge asks. “Were those same senior members of the Senate meekly acquiescing to Mr. Wright’s orders? Were those same senior members of the Senate robotically marching to recite their scripted lines?”
The judge also noted disapprovingly how Wright asked Sen. Irving Gerstein, then the Tory bagman, to see if a friend at Deloitte could give them a heads-up on the firm’s 2013 audit of Senate expenses. The judge asks: “Did Nigel Wright really direct the senator to approach a senior member of an accounting firm that was conducting an independent audit of the Senate to get a peek at its report … or to influence that report in any way?”
The Crown and RCMP, Vaillancourt said, singled out Duffy as “driven by deceit and manipulations”.
“If one were to substitute the PMO, Nigel Wright and others for Senator Duffy,” the judge noted with withering irony, “you would have a more accurate statement.”
Vaillancourt’s assessment of the Harper PMO’s behaviour in the Duffy affair was nothing short of devastating. These are not the sorts of things Canadian judges say about federal leaders every day of the week:
“The political, covert, relentless unfolding of events is mind-boggling and shocking. The precision and planning of the exercise would make any military commander proud. However, in the context of a democratic society, the plotting as revealed in the emails can only be described as unacceptable.
“Could Hollywood match their creativity? It is interesting that no one suggested doing the legal thing. If anyone was under the impression that this organization was a benign group of bureaucrats taking care of the day-to-day tasks associated with the Prime Minister, they would be mistaken.”
Actually, the “benign bureaucrats” are in the Privy Council Office, the prime minister’s department on the top two floors of the Langevin Block and the Blackburn and Post Office buildings behind it on Sparks Street.
The PMO, on the first two floors of Langevin, is a political office with exempt staff. But PMO staff are supposed to be there for a higher purpose — crafting and implementing the government’s agenda, and getting out the PM’s message. They’re not supposed to be running cover-ups and abusing the power of the PM’s office.
In only six months, Stephen Harper’s legacy has been dismantled significantly by the Liberals — especially in their budget — and by the Supreme Court in its rulings disallowing Conservative criminal justice laws on time-served and minimum sentencing. The Vaillancourt ruling makes the Harper PMO look like the Nixon White House — a crew of unindicted co-conspirators.
As for Duffy, he gets the last laugh on Harper and his PMO team, who ruthlessly threw him under the bus. He is reinstated in the Senate, with salary and staff restored. He can serve Prince Edward Island and Canada for another five years as an independent — the new political colour in the Red Chamber.
Most of all, he has regained his reputation and his good name, thanks to an eloquent judge with a ferocious sense of decency.
Author: L. Ian MacDonald