The unfilmable drama: Duffy’s defence takes on a Senate staffer

Day 14: Nick Köhler on Nicole Proulx’s defiant stand in the witness box

Mike Duff

(CP Photo)

It would have made great television, and yet there was not a camera in the room. Mike Duffy, one of this country’s most celebrated broadcast journalists, turned senator, turned suspended senator charged with 31 counts of fraud, breach of trust and bribery, was today at the centre of an unfilmable drama.

The irony was as sublime as the action.

The theatrics got raw and started early, in unfriendly jousting between Duffy’s lawyer, Donald Bayne, and one of the Crown prosecutors on this case, Jason Neubauer—”let’s not pick away, gentlemen, really and truly,” Justice Charles Vaillancourt, intervening, cut in at one point—then reached a point of heat hitherto unseen in Courtroom 33, at the Ottawa courthouse on Elgin Street, as Bayne launched into his cross-examination of a woman he sees as a hostile interlocutor.

Nicole Proulx, head of the finance directorate at the Senate of Canada during the period of time under consideration here, had over the preceding two days given the Crown’s case a well-needed jolt—well-needed, because Bayne has had a way of making perverse use of the prosecutors’ witnesses, subverting them to meet the needs of the defence.

The Crown has endeavoured to show that the Senate is a place of well-defined, clearly intelligible rules, which Duffy knew and deliberately broke.

Bayne has at the same time done a good job of upsetting that narrative, exposing the place as a morass, and suggesting Duffy’s response to it all was reasonable and—among senators—not unique.

For a while there, Proulx seemed everything the Crown needed: smart, unflappable, on the ball.

    But in one of those reversals that’s the stuff of high drama—a wrestling match upended mid-action, that abrupt flip to the established positions of strength—things went badly awry today for the Crown.

    It began this morning with a series of strange non-objections that Bayne stood to make during Neubauer’s examination of Proulx.

    Bayne, wearing a sky-blue tie polka-dotted with vividly yellow lemons, complained of Proulx’s “willingness to opine on her interpretation of the rules,” telling Vaillancourt: “She keeps on trying to encroach on your sphere”—that is, to define the Senate rules in operation at the time Duffy is accused of breaking them.

    Vaillancourt appeared to agree, telling Neubauer: “As Mr. Bayne pointed out, I will make these determinations … Mr. Bayne’s observations strike an accord with myself”—almost certainly a judicial misnomer.

    Bayne is fascinating to watch in the courtroom. He bristles with vigilance, pivots his head—left, down, up—taking in one vista, then the next. There are moments when everything is still in Courtroom 33—glacial, even—except for Bayne, who is unceasingly on the move.

    He shrugs, thrusts his hands in his pockets, jerks his head even while in his chair—this way, that—feasting on the room with his gaze.

    His mobility is in radical contrast to his client’s.

    Today, someone walked into court and tapped Duffy on the shoulder, eliciting a turtle-like response: Duffy, unable to turn to greet the newcomer from his seat, instead stood, attempted two or three times to pirouette, then tottered ’round to take a glance to his rear.

    A good thing that Bayne is there to fend for him, particularly against the former head of finance. Duffy, famous for his inability to countenance talkback from underlings, may well have nurtured a feud with Proulx. If he did, he sure can pick ’em.

    Proulx, Bayne maintained throughout the Crown’s painstaking attempts to walk the court through Senate rules, is “an interested witness” whose description of these regulations cleave to the Senate as she believes it ought to be, rather than to the world as it was when Duffy submitted his infamous expense claims.

    At that time, says Bayne, everything was unclear. “Show me the guideline,” he was heard to interject more than once.

    Neubauer challenged that notion directly, pointing out that, though no explicit prohibitions were in place to ban it, senators were never permitted to pay for their lawns to get mowed from the public purse.

    Does the absence of a rule “mean it’s not an offence,” Neubauer asked. “Of course not. That would be absurd.”

    Again, Vaillancourt, in response to a Bayne objection, demurred, saying the whole point of these proceedings was to determine if there were rules, adding pointedly in reference to Neubauer that he hoped there was “something more substantial than what’s on the platter so far” to carry the prosecution’s case.

    Neubauer nearly demanded to know whether the judge had already made his determination.

    “I usually wait until the end of the day to decide the facts,” Vaillancourt told Neubauer, and it was hard to see that as anything other than a scolding.

    The atmosphere then was thick, and yet nothing prepared us in the courtroom for the ferocity of Bayne’s attack as he began cross-examining Proulx.

    “When you walked into this courtroom, it was the first time I ever laid eyes on you, and vice-versa,” Bayne said by way of introduction, and Proulx agreed—the intensity of the moment strangely inexplicable as the pair stared each other down, the one from his podium, the other from her position in the witness box.

    Bayne then made it clear that he’d attempted time and again to secure a meeting with her: “I offered to meet you any place, any time,” he said. “You were too busy.”

    Reluctantly, Proulx eventually agreed.

    Meanwhile, Bayne put to her, “you were meeting with and you were corresponding with and you were helping—and that’s your word—the prosecution.”

    Proulx allowed she was the “focal point” for documents requested by the RCMP in its investigation of Duffy—the same that led to this trial.

    Bayne read out portions of disclosure enumerating the number of times Proulx met with RCMP investigators and the Crown—there may have been as many as five encounters (although court broke on just this question, with Proulx asking to be allowed to consult her agenda, saying: “I did not know I would be on the stand for this!”).

    “You did it willingly,” Bayne said of the assistance she gave the police and the prosecution.

    “As opposed to?” asked Proulx.

    “Being compelled,” said Bayne.

    “I’m not sure what you mean,” said Proulx.

    “Being forced,” Bayne told her.

    Proulx answered that she had been under the impression she was obliged to meet the requests of police and of prosecutors. Bayne pointed out that Proulx has retained her own lawyer, and that one of that lawyer’s first tasks had been to deal with Bayne’s requests to meet with the former head of Senate finance—and to tell him no.

    “Although you were too busy to meet even once with the defence, you weren’t too busy to help the prosecution,” he charged. “You’re not an advocate, you’re a witness,” he felt required to remind her elsewhere.

    Proulx, under attack by an antagonist, kept her cool. Once or twice, she met his questions with a smile that, in a different setting, might be called insolent, but here almost appeared like an invitation to engage in fisticuffs.

    “This is my first time in this type of setting,” Proulx told him. “I hope it is my last time.”

    Proulx is someone to be reckoned with. Earlier in the day, she seemed to relish the opportunity to raise the issue of a $90,000 cheque, cut by Prime Minister Stephen Harper’s then-chief of staff Nigel Wright so that Duffy could repay his bum expenses.

    Looking at a spreadsheet of Duffy’s expenses and seeing a negative balance, she blithely chirped an explanation, saying this was due to “the repayment of the $90,000.”

    So as court broke for the weekend, you could almost conceive of a future in which Bayne had found he’d met his match.

    When, as she left court, Proulx approached Bayne to return a sheet of paper he’d handed her in the witness box during cross, Bayne appeared very nearly to turn his back on Proulx, and did not take the paper by hand. Proulx had to stretch, and laid the paper on the table beside Bayne, and then marched away like the last word was hers.

    Court reporter Nicholas Köhler on the Duffy trial

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