’Why not cover a real trial?’

Day 21 at #duffytrial: a Potemkin process takes hold in Courtroom 33
Le sénateur Mike Duffy au Sénat à Ottawa le 9 mai 2013. ANDRE FORGET/QMI

Suspended Senator Mike Duffy leaves the Ontario Court of Justice, in Ottawa

A black atmosphere hovered over Ottawa’s Elgin Street courthouse today—a vague sense that the proceedings in Courtroom 33, where Mike Duffy is on trial, have started in on a sideways course.

“Why not cover a real trial?” said a prominent Ottawa criminal lawyer, as he stepped toward the building’s revolving door outside.

Why not? It was something to seriously consider on the morning of Duffy’s 21st day in court.

Inside, through the kaleidoscope of those spinning doors, the proceedings began to feel like a Potemkin process. The lawyers of Courtroom 33 spent significant time raising issues peripheral to the matter at hand. Things stalled twice for want of witnesses. And those witnesses we did see—just two of them, both MPs—were pretty procedural.

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Throughout the day—take a pinch, this is an entirely impressionistic account—the body language between the Crown and the defence spoke of more than just trivial disagreements.

Was it the leaks?

Because, in the minutes just before Justice Charles Vaillancourt arrived, there was consternation among reporters over what they perceived as a “leak” of documents, emanating from whatever camp, detailing a Deloitte audit of Senators, including emails sent by Nigel Wright, former chief of staff to the Prime Minister.

In the correspondence, Wright was attempting to manage Duffy back when Duffy was still a senator in good standing—and in the middle of a still blooming political scandal.

The news stories arising from that leak recommend themselves primarily for a Wright missive that actually manages to string together the words “bucket,” “Mike,” “squirrelly” and “panel,” into a single, narratively cohesive sentence. It is a thing of beauty.

Enter the judge, which permitted defence lawyer Donald Bayne to launch into his ongoing attempt to block the inclusion as evidence of an old Wikipedia entry on Duffy.

The Wiki article came into play during the appearance in the witness box of freelance journalist Mark Bourrie, who Duffy ended up paying to scrub his online footprint. Bourrie proffered the document from the stand to highlight the character assassinations Duffy faced after his appointment to the Senate.

But Bayne’s submission this morning, made in answer to an argument by Crown prosecutor Jason Neubauer last afternoon, felt beside the point and tangential to the matter at hand—in other words, the trial of Duffy on 31 counts of bribery, breach of trust and fraud.

Just quick, Bayne—who appeared to look upon the issue as an affront to his honour—picked apart Neubauer’s remarks of the previous day, which claimed more or less that the court required the Wiki entry for the integrity of the record, but also that its contents weren’t nearly as rotten as Bayne says.

Bayne, for his part, said they were, and gave good evidence—”Mike Duffy is a fat f— kind of stuff,” he said, quoting Bourrie—as well as material on Duffy’s previous sexual liaisons, and brushes with the law. And he noted Vaillancourt’s first instinct on the matter, on the day of Bourrie’s appearance, that the material wasn’t relevant.

“The media has a field day with these kinds of things,” Bayne told Vaillancourt, an ironic assertion given how someone in the courtroom may well be responsible for yesterday’s leak. “There’s a mad rush to sensationalize everything.”

That’s when Bayne raised the sanctity of the proposition of the presumption of innocence—as though his interlocutor on this matter, Neubauer, has trouble wrapping his head around it.

As someone familiar with the case said afterwards, to a Crown prosecutor these are fighting words. Vaillancourt took it upon himself to let the players know it’s something that at least he is familiar with: “That presumption remains from the beginning to the end of these submissions,” he said, before adding: “Now can we get to some evidence?”

It was a sentiment—let’s be clear, the judge was signalling his impatience—shared by observers in the gallery.

Therefore it was a bit of an anticlimax to hear the testimony of Ron Cannan, Conservative MP for Kelowna-Lake Country, and fellow Tory MP Barry Devolin, who represents Haliburton—Kawartha Lakes—Brock.

Both had hosted Duffy as a visiting VIP, engaged in the business of engaging Canada’s Conservative base, in his capacity as a Conservative senator.

Duffy filed travel expenses after these sojourns, and the question of whether he was performing public business, worthy of taxpayer remuneration, is one of the chief issues the judge will have to decide here.

All of it was less than scintillating testimony, except that it painted a portrait of Duffy back in the early days of his senatorship, when he became a sort of itinerant rainmaker, flag-bearer, circus performer, on behalf of the Conservative Party—back when Harper appeared alongside him in places like Cambridge, Ont., to discuss the government’s stimulus plans following the 2008 bust.

Duffy didn’t appear to react to either Cannan or Devolin today—not like yesterday, when government whip John Duncan reminded him of the time he flew out to Comox, B.C. for a fundraiser. Duncan described the party devolving into “a circle of chairs—it was storytelling time.” You could easy imagine Duffy leading it: “a dozen or so people who were quite enjoying the conversation.”

If you looked over at just that moment, you saw Duffy quite enjoying the memory.

Of course, we paid for that trip to Comox. Who else?

Court reporter Nicholas Köhler on the Duffy trial