Crown seeks to get narrative back as first week of Duffy trial comes to a close

Suspended senator Mike Duffy leaves the courthouse in Ottawa on Thursday, April 9, 2015. Duffy is facing 31 charges of fraud, breach of trust, bribery, frauds on the government related to inappropriate Senate expenses. THE CANADIAN PRESS/Justin Tang

Stephanie Levitz, The Canadian Press

OTTAWA - If he wanted to, could Prime Minister Stephen Harper appoint Justin Bieber to the Senate?

That’s how prosecutor Mark Holmes shook awake Mike Duffy’s criminal trial Friday after watching a days-long cross-examination of his opening witness that at times did more for the defence than it did for the Crown.

The court has been debating the merits of the suspended senator’s housing and expense claims — notably, those related to his residency requirements as a senator and contracts for research and other services.

In both cases, the Crown alleges the way Duffy handled his finances constituted a crime, but the defence says he was merely trying to follow the rules — rules so vague and nondescript it was all but impossible to know how.

The qualifications for Senate appointments themselves are laid out in the Constitution. They say, among other things, that would-be senators must be at least 30 years old and a resident of the province from which they are appointed.

The Crown argues Duffy was not a resident of Prince Edward Island and therefore not entitled to the expenses he claimed. But were he not a resident, surely he couldn’t have been appointed in the first place, counters the defence.

Holmes, the deputy Crown prosecutor, was clearly struggling with that logic as he cross-examined former Senate law clerk Mark Audcent.

“Justin Bieber is 21 years old,” Holmes offered.

“And so — see if this helps, at least me, understand — if the Governor General, acting on the advice of the prime minister, appointed Justin Bieber to the Senate tomorrow, would he become 30?”

“Of course not,” Audcent replied.

That exchange came after defence lawyer Donald Bayne spent hours taking Audcent through the Senate rules and regulations that codify what members of the upper chamber can and can’t do in the course of their jobs.

The guidelines had become more numerous and complex in recent years, Audcent said, but haven’t always been crystal clear, often having to be tweaked following specific events, he acknowledged.

One example: a rule spelling out that nomination contests were not considered official business wasn’t added until after that specific example came up, Audcent said.

What constitutes “official business” is sure to remain a theme. Questions persist about the thousands of dollars in expenses Duffy billed taxpayers for trips that his diaries — and the Crown — suggest were personal or highly partisan, and had nothing to do with the business of government.

Though the Senate does pay for some partisan activities, there’s an underlying principle at play, Audcent said.

“Although the common case in which it arises is that we don’t reimburse for registration fees for party conventions, the underlying principle is that the houses of Parliament are not going to subsidize the political parties through this intermediary of the members, ” he said.

There’s another principle important to the Senate’s work as well, he noted: honour.

The Senate is imbued with the notion that senators should be honourable in their dealings; at one point, it was even spelled out in the principles that guide the upper chamber, although that’s no longer the case, Audcent said.

“This idea or presumption that somebody acts honestly is sort of disappearing as a presumption, because we’re putting in all these controls and checks,” he said, a reference to the growing body of rules that govern Senate business.

Those include rules concerning contracting and staffing, which give senators broad discretion to hire whomever they like to work in their offices. Further, if contracts are tendered for research or other services, proof of that service isn’t required in order to obtain reimbursement for the cost.

“In layman’s terms, you hire who you want to do the work you want done,” Bayne said. “Yes,” Audcent replied.

The debate about the rules on contracting and hiring is related to the fact that a friend of Duffy’s received four contracts worth a total of $65,000 — work the Crown alleges was never performed.

The rules around contracting are so vague that an internal Senate audit recommended in 2010 they be tightened with more oversight, Bayne told the court.

The Senate’s internal affairs committee disagreed with that advice.

The trial continues Monday.

© The Canadian Press, 2015

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