Mike Duffy gave more information than required on claims, defence says

Additional details about the purpose of trips that were included on some of Mike Duffy's travel claims prove the suspended senator was not trying to defraud the Senate, Duffy's lawyer suggested today.

Duffy has pleaded not guilty to 31 charges of fraud, breach of trust and bribery related to expenses he claimed as a senator and later repaid with money from the prime minister's then chief of staff Nigel Wright.

The suspended senator's trial, which began April 7 in the Ontario court of justice in Ottawa, is in its 32nd day.

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Court heard testimony from Maggie Bourgeau, a Senate finance clerk who was responsible for reviewing the expense claims of Duffy.

Bourgeau had testified that on the claim form, under purpose of travel, senators were only required to write that the trip was for Senate business and that no other details were needed.

During cross-examination, Duffy's lawyer Donald Bayne referred Bourgeau to three claims that the Crown has alleged should not have been expensed by Duffy because the travel, they say, was not related to parliamentary business.

'The last thing he'd do'

One of the claims included the detail that the travel was for a "medical appointment with specialist in Ottawa." (That claim was red-flagged by Bourgeau, but approved after Duffy's executive assistant added the detail that the trip was also for a community event.)

"Had he said Senate business it would have attracted no special scrutiny or attention," Bayne asked.

"Correct," Bourgeau said.

'Had he stuck to the boilerplate acceptable term Senate business ... he could reasonably expect there would be no scrutiny whatsoever.- Donald Bayne

"And so if the senator is trying to defraud somebody or avoid oversight, the last thing he'd do is write all this extraneous material, right?" Bayne said. 

Bourgeau agreed.

Bayne referred to another claim, which said the purpose of the travel was to "meet local officials on broadcasting issues."

A third claim said the purpose of the trip was for a "speaking engagement — Senate business."

"In all of those cases we just looked at, the Senator gave more information than was required," Bayne said.

"Yes," Bourgeau said.

"And had he stuck to the boilerplate acceptable term Senate business or parliamentary business or public business ... he could reasonably expect there would be no scrutiny whatsoever for the purpose," Bayne said.

"Correct," Bourgeau said.

Parliamentary privilege arguments wrap up

Earlier in the day, lawyers wrapped up their arguments over whether the Senate had the right to assert parliamentary privilege on an internal audit on the residency status of senators.

Maxime Faille, representing the Senate, said the court has no right to overturn the Senate's assertion of privilege, saying the report certainly meets the triteria of what the Senate can choose to keep private.

"There really can be no doubt that this document falls squarely, entirely within the scope of what constitutes a proceeding, what is internal to the Senate, and what is protected by Article 9 of the Bill of Rights," Faille said. "It is the very essence of what privilege is intended to protect."

The Senate has asserted parliamentary privilege over the report, meaning its details are being kept secret from the public and from the trial. 

Faille also took issue with one of the main arguments of Peter Doody, representing Duffy, who wants the report admitted into evidence. Doody argued that a series of Senate reports relating to Senate expenses have already been entered into evidence in the trial, meaning that either no privilege was asserted in those cases or that the Senate waived that privilege. He said the 2013 internal audit report should be treated the same way.

But Faille said it's the Senate's discretion as to which documents or reports it wants to assert privilege over.

Faille argued that Parliament has the exclusive authority as to whether and when to exercise the assertion of privilege and that there's nothing novel about the category of privilege that would preclude the Senate from asserting it in this case.

"Parliament has exclusive decision making authority to publish debates or proceedings or decline to do so. It is an absolute privilege that is not reviewable by the courts," Faille said.

Doody said there was not enough evidence to confirm that the report was, in fact, discussed in camera (behind closed doors), let alone tabled in camera. And even if it was, Doody said, because it's a report and not oral testimony, it should not be protected by privilege.

'Not a whit of difference'

But Faille countered it makes "not a whit of difference" whether the information being presented in camera was provided orally or in document form.

Bayne wants the report entered as evidence, believing it will support his argument that the rules of the Senate are vague and ambiguous. The audit was conducted by Jill Anne Joseph, then director of internal audit at Senate administration, who found there was a lack of clear criteria surrounding the issue of residency.

Residency is one of the central issues in the case against Duffy. He designated his home in P.E.I. as his primary home, making him eligible to claim meals and living expenses for his time in Ottawa, even though he has lived and worked in Canada's capital since the 1970s.

Judge Charles Vaillancourt said he will deliver a decision on the privilege issue by August.