Mike Duffy trial: Defence argues for admissibility of secret Senate audit

The Senate shouldn't be allowed to keep secret an internal audit, a lawyer for the Mike Duffy defence team argued today, saying the legislative body has kept the "curtain closed" on information it does not want the court to hear.

Lawyers at the Duffy trial in Ottawa were arguing Thursday over whether details of a 2013 internal Senate audit on the residency status of senators are admissible. The issue is whether the Senate has the right to assert parliamentary privilege over this report, meaning its details would be kept secret from the public.

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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, is in its 31st day.

Lawyer Peter Doody, representing the defence, said there is no recognized privilege of the Senate or Parliament that would allow a report of that kind to be kept secret.

Doody said 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.

"The Senate has lifted the curtain of what it wants the court and defence to see while keeping other parts of the curtain closed covering information dealing with exactly the same issue which they don't want the defence or court to see," Doody said.

"Fairness and consistency require that all be shown," he said.

Doody also argued that it's not necessary to the "constitutional function" of the Senate that such a report dealing with the expense claims of senators be kept secret.

"It's hard to understand why the public interest in a properly functioning Senate requires that reports about members' expense accounts be kept from the public eye," he said.

Duffy's main defence lawyer, Donald 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.

The Crown in Duffy's trial disputes that P.E.I. is his primary residence and contends that Duffy was not eligible for those claims.

But Senate lawyer Maxime Faille, presenting an overview of his case, said the privilege being asserted in this case is not novel, but part of an established core privilege that has already been plotted by the courts

"It could hardly be more pedestrian or conventional," he said.

"It is the very definition of what is covered by the essential categories of parliamentary privilege  — freedom of speech control over debates and proceedings, and the right to deliberate in camera."

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.

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

​As for the allegation of the Senate being inconsistent with how it releases reports, Faille said that argument is "simply irrelevant." Prior pronouncements by courts have asserted that Parliament retains the exclusive authority as to whether and when to exercise the assertion of privilege, he said.

Faille will continue his argument on Friday.