Criminal charges facing the senator from P.E.I. may be beside the point. In attending court for the entire trial, Maclean's learned a surprising, dark truth about R. v. Duffy.
It is hard to fathom that Sen. Mike Duffy's aim during his 62-day trial, apart from defeating the manifold bribery, breach of trust and fraud charges laid against him by the RCMP, was anything other than to topple the man he took to be his true adversary in the courtroom--Stephen Harper, who throughout most of these proceedings remained prime minister.
Here was a topsy-turvy turn of events. Once, Michael Dennis Duffy had been the genie of Cavendish, P.E.I., the Conservative Party of Canada's in-house raconteur, itinerant fundraiser, flag-bearer, circus performer. An upstart from the regions who'd made good in Ottawa, he had returned home to rain federal-government largesse like manna on his boyhood province.
Now here he was, confined, day after day, to courtroom 33 in the downtown Ottawa courthouse--embattled, all but undone, alone save for his wife, Heather, a handful of stalwart pals and his lawyer, the formidable Donald Bayne. On the docket, they called it R. v. Duffy. Really the Ol' Duff was at war with the centralizing powerhouse of Harper and his "kids in short pants" at the Prime Minister's Office.
Perhaps no Ottawa clique has valued secrecy and control as dearly as Harper's office, and no keyhole is more revealing of that gang's capacity for scheming than the trial of Mike Duffy. If Duffy himself is hardly a sympathetic figure, neither were the PMO staffers who testified as witnesses for the Crown. Four months after Justin Trudeau's Liberals swept the Tories from power promising "sunny ways," the Duffy matter remains the best case study of how dark things can get.
"I wasn't hired because I was teeth and hair," Duffy told the court in December, making reference to the more superficial attributes associated with on-air TV personalities, of which he has few. "I was hired because I work long and hard, and broke stories. And that is the formula for my success in life. Do what the boss wants, work harder than everybody else. That's been my mantra throughout. Because nothing I've done has come to me easily."
His most recent boss had been Stephen Harper. Duffy had worked for him, hard, and Harper had cast him to the wolves--cast him out at the first opportunity.
When his trial got underway last April, Duffy sat behind his lawyer, his head hung low. Then Bayne, with his white hair and a build that still, though he was in his late 60s, recalled his days as a quarterback at Queen's University, stood and described how wretched Duffy's position became at the height of the crisis in 2013--ejected from the Tory caucus, suspended from the Senate, just for going about his parliamentary business.
Bayne told of how Nigel Wright, Harper's former chief of staff, made a scapegoat of Duffy, and by that unwholesome method attempted to end the "public agony," the "Chinese water torture," of scandal.
Complete with theatrical, suspense-laden ums and ahs, Bayne read from Wright's RCMP interview: "I was aware of the fact that I was pushing very hard to have a caucus member repay a significant amount of money to which he may have been legally entitled." See there? His client was innocent, Bayne said, and yet here he was, disgraced, his life a shambles.
And so it may have remained. But last Aug. 2, earlier than anticipated, Harper called a federal election. Canadians who believe the 2015 election was won and lost on the niqab, or Syrian refugees, or just sheer voter fatigue, forget that things began to fall apart with Duffy, and broke down completely in this courtroom. Here was Duffy's chance: the trial would give him a shot at getting his own back.
This is the story of how he did exactly that. Maclean's was there, every single day of the trial, watching him do it. Whatever presiding Justice Charles Vaillancourt's verdict in late April--guilty, not guilty, on all or some of the 31 charges--this is the story of how an unyielding Sammy Glick, a man who saw himself as persecuted, shunned, driven out, got his revenge.
1. BREATHLESS IN THEWITNESS BOX
It probably did not help Duffy's cause that he made his way to court each morning from 47 Morenz Ter., in the Ottawa suburb of Kanata. Upon his appointment as a senator for P.E.I., Duffy immediately began claiming living expenses he incurred for living at that address, though he'd resided there with his wife Heather since 2003--he claimed more than $80,000 over the course of four years. Why not? As one Senate official put it at trial, the rules of the red chamber are so elastic "one could get the feeling you could be a resident of a place you've never been."
Duffy would arrive at the courthouse amid an electrical storm of artificial lights, the boom microphones rising in unison. Once through the glass doors, safely beyond the reach of the cameras, Duffy, who favoured good suits cut to his odd frame, trudged the halls toward the courthouse's Tim Hortons concession. There he stood in line with lawyers, clerks and men with neck tattoos. It was a slow line, much remarked on by regulars.
In court he adopted a blank expression, likely due to the proximity of former colleagues in the press. Duffy had left one club--the tight-knit family that is the parliamentary press gallery--for the Harper fold. Now he belonged nowhere; he'd reportedly mortgaged his home, presumably to help defray the costs of this ordeal.
Immediately ahead of the courtroom benches reserved for media sat Sgt. Greg Horton, lead RCMP investigator in the Duffy case, as well as the cases of Sen. Patrick Brazeau, appointed as a Tory, and former Liberal Sen. Mac Harb (but Horton is not the investigator in the case of Sen. Pamela Wallin, also once a Tory, who is under investigation but has not been charged).
Reporters first became aware of Horton through his bulldog Carmen. The animal featured in images on his laptop, open on his desk in full view of the press. Carmen appeared dressed in hunting attire and apparently drinking beer. Mild-mannered and well-dressed, his hair kept cropped close at the sides, Horton was a voracious news reader and had approached his boss about looking into the Senate after spotting stories about it in the paper.
His probe, dubbed Project Amble, took Horton more than a year. Over that time, Horton and a colleague took to sitting in the Bridgehead coffee shop behind the Langevin Block, where the Prime Minister has his office, and made bets on which passersby worked in the PMO based on how eccentrically they dressed. Horton had noticed the kids in short pants were into offbeat fashion.
The Crowns sat just in front of Horton. If Mark Holmes, the lead prosecutor, had the irascible bearing of a high school vice-principal, then his co-counsel, Jason Neubauer, exhibited a penchant for hanging back behind a killer point, like Billie Holiday's voice behind the beat.
This was Neubauer's method in dealing with Mike Croskery, whom Duffy hired as a personal trainer while still a CTV broadcaster, then tapped as a consultant on Senate work. The allegation here was that Duffy paid Croskery out of Senate money he funnelled through two of his old friend Gerald Donohue's private companies, skirting Senate oversight.
"What did he say to you in that initial conversation about the consulting?" Neubauer, an economically built, quiet man, asked Croskery. (Like other portions of testimony contained in this story, this exchange has been condensed and edited from recordings.)
"Um," said Croskery. "I believe he said, 'Well, let's do this as consulting.' "
"Let's do what as consulting?"
"Um, I would assume that, as we meet, um, we're going to be consulting on this project. Was my take on the matter."
"As you meet to do what?" Neubauer had permitted a slight edge to creep into his voice.
"Ah. As we meet. Um. For the exercise, I guess."
"Did he describe the nature of the consulting he was proposing?"
"Yeah, yeah, he did. He sort of, um, he'd describe it as this--he wants to do a--I guess-as I understand it--I guess--there's projects that senators would work on. And this was one of the projects that he wanted to work on--was getting information to older adults on health and fitness."
Croskery cleared his throat.
Neubauer continued. "So, can you help us with how he described this project?"
"I don't really recall what he exactly said. Um. But that was what I interpreted it as-um--what he was doing."
"And you said earlier that--I can't recall your exact words, but--the majority of these sessions took place during workout sessions?" "The majority of the consulting sessions? Yeah, it was combined."
"It was combined. There were some times when we just sat and talked, but. Because he knew the exercise routine. Um. And it wasn't like he was really out of breath."
"So you're citing research to the senator--"
"--as he's exercising?"
"And so--um--was he writing down what you were saying as he was exercising?"
"He didn't write most of it down. Occasionally there were times where we'd stop, type something down onto his computer. I don't know what was typed on the computer, but he didn't--he didn't have a notepad there, taking notes or anything like that."
"And did you arrive with notes?"
"Ah, no," Croskery said. "No."
Croskery's face had gone very red. "Did you get any sense from the senator as to how the project was progressing over the years?"
"No," Croskery said.
Croskery received approximately $10,000 in consulting fees over three years. How did the pair come up with this payment scheme? "From what I remember," Croskery said, "he came up with the numbers."
"Was that okay with you?" Neubauer asked him.
"That was fine by me."
Sitting in his corner of the courtroom, Duffy steadied himself against the indignity of this testimony as though against a brisk wind. Propped up next to him was a large-format photograph featuring Duffy and Stephen Harper that had been filed as an exhibit, then forgotten there. "To Duff," read a handwritten note Harper had scrawled across it. "A great journalist and a great senator. Thanks for being one of my best, hardest-working appointments ever!"
2. THESE USED TO BE HIS PEOPLE
At the end of each day, Heather Duffy went to collect the maroon Hyundai Santa Fe with a P.E.I. licence plate affixed to the back. Duffy hung back inside until she drove up. One summer day he miscalculated and walked to the curb too soon. Surrounded by cameras, he calmly dialed Heather.
"I'm standing out here with my friends," he told her.
These used to be his people.
Often among them was Robert Fife, then Ottawa bureau chief for CTV News (he is now at the Globe and Mail). Duffy mentored Fife after he left newspaper reporting for TV in 2005. In testimony, Duffy identified Fife as his "good friend," and as someone he went to for advice when Stephen Harper offered him a Senate seat.
"Go for it," Duffy said Fife told him.
On May 14, 2013, Fife reported that Nigel Wright gave Duffy "cash for the repayment" of his dubious living expense claims. That transaction, which amounted to more than $90,000, later formed the basis for the three bribery-related charges laid against him. It was the end of their 30-year friendship: Fife and Duffy have not spoken since.
Former colleagues describe Duffy as a ferociously thin-skinned man who knew everybody but had few friends. Status motivated him. One former journalist and drinking buddy testified he remembered when reporters called Duffy "the Senator," even when he wasn't one. Duffy's history, as told in the witness box-by a cousin, friends, Duffy himself--spoke of a relentless ambition to succeed.
His grandfather had been a Liberal and served as speaker in P.E.I.'s provincial Legislative Assembly. The youthful Duffy had different leanings. A lacklustre student, he focused on the pop-music column he wrote for the Guardian--"Platter Chatter," it was called--and hosted a Hairspray-style dance program called Club 62, on CFCY, the local TV station.
He dropped out of high school after Grade 10 and sought radio work, landing at CJCH in Halifax. Deemed unready for that job, he was let go and had to hitchhike out of town. Yet Duffy was a hustler, a kid on the make. Setbacks proved his fuel.
He arrived in Ottawa as a CHUM radio reporter in 1971, at 25. The little pisher from P.E.I. had made it out of the Maritimes, finding the city of his future. By the mid-1970s, he was at the CBC, first filing for radio--from as far away as Saigon, poised to fall to the North Vietnamese--then, in 1977, for CBC TV's The National. He was not standard material for television, yet something about it worked. He became a household name.
In those days, the Ottawa press corps was a hard-drinking, carousing bunch, and the division between reporters and political operatives was more porous than now. It was an atmosphere to which Duffy's backslapping, voluptuary style was well suited. In testimony, he described the years after his marriage broke down in 1979, when he became estranged from his two children, as a "lost decade," and allowed himself to weep.
He maintained a routine that did little to prevent his current heart and other health complaints, which are legion. But his career did not suffer. By the end of the 1980s he was at CTV hosting political talk shows modelled on such U.S. programs as Meet the Press.
It was in the mid-1980s that Duffy first met a young man who, years later, would turn his life upside down--and whose life Duffy would help upend in turn. Nigel Wright, then in his early 20s, was on hiatus from law school at the University of Toronto and working for Charles McMillan, senior policy advisor to Brian Mulroney. McMillan was a boyhood friend of Duffy's--his father, a surgeon, once administered to Duffy after an accident--and in an email to Maclean's, McMillan recalled introducing the two men at an Italian restaurant in Ottawa.
Duffy's arrival at the Senate, in late 2008, preceded Wright's at the PMO by just over a year. By then, Wright was a managing director at Onex Corporation, a Toronto-based private equity firm, pulling in a reported salary of $2 million. He helped establish the Conservative Fund of Canada, ran 20 km each morning and was a fierce Anglican.
Really, you could not have found two men more different than Duffy and Wright.
3. OL' DUFF GOES BALLISTIC
Duffy had been absent from P.E.I. for more than 40 years, and his appointment to the Senate for that province proved immediately controversial. Things were slower to boil in the rest of Canada, but boil they did.
"Your primary residence is P.E.I. yet you vote in Kanata, correct?" Glen McGregor, at the time a reporter for the Ottawa Citizen, wrote Duffy on Dec. 3, 2012 (he is now with CTV). "I think a lot of people would be interested to know you can claim extra costs of a 'secondary residence' in a city you've been in since 1974. Anything you think I should know about this, please let me know."
McGregor's story appeared online that night. But it was not until February 2013, when a news report said Duffy had contacted the P.E.I. health minister's office looking to fast-track his application for a provincial health card, that the issue first became of concern to Nigel Wright. "This caught my eye," Wright testified. It was an indication, he said, that Duffy was "less than comfortable" with his residency status.
If Wright was concerned, reporters were delighted. On Feb. 6, Duffy fled a media scrum seeking to ask him about his expenses--he scrambled through a hotel kitchen in Halifax as security ran interference. "You should be doing adult work," Duffy, the former journalist, told a reporter.
According to his testimony at trial, Chris Woodcock's job as director of issues management in the PMO was to brief Harper on anything that "would ruin the prime minister's day." This was one of those things. Woodcock fashioned a media line for Duffy.
"As a long-time Prince Edward Islander, I am proud to represent my province and its interests in the Senate of Canada," it read. "I have a home in Prince Edward Island and I have provided the Senate Committee on Internal Economy, Budgets and Administration with documentation demonstrating that I am a resident."
Woodcock distributed this among his PMO brethren, among them Wright and Ray Novak, Harper's principal aide. "Agree," responded Wright, who has a penchant for lofty language. "But let this small group be under no illusion. I think that this is going to end badly."
The next day, the Senate referred Duffy's residency declarations and related expenses to external auditors at Deloitte, the forensic accounting firm, along with those of Sen. Patrick Brazeau and Mac Harb, who has since retired from the Senate.
Duffy went ballistic, prompting Wright to seek solutions that would, as he put it in what's since become an infamous email, "prevent him from going squirrelly on a bunch of weekend panel shows."
What followed was a concerted effort on the part of Wright and his PMO underlings to contain the growing scandal.
Much of the story is lost in the confusion surrounding events about which the key players deeply disagree. It began with heated discussions between Wright and Duffy about whether Duffy could defend his living expense claims, which at the time were understood to amount to $32,000 over four years. Duffy believed he had a good technical case--that Deloitte would put him in the clear.
Wright believed this didn't matter, and urged Duffy to stop arguing his case. Duffy mentioned he had a binder of materials outlining his activities--evidence, as he saw it, that he really did live in Cavendish, P.E.I., making Kanata his secondary abode. Wright said he'd look at it.
He never did. Arriving at Langevin, Duffy's package somehow ended up misplaced in the office of Wright's executive assistant, David van Hemmen. Recovered after Wright's resignation, this material would prove crucial in the RCMP's developing case against Duffy and to Wright's future.
To the extent he knew of these discussions--and this remains a point of controversy--Wright's boss agreed with his chief of staff. This was not a technical issue related to constitutional residency requirements, the PM suggested. "This issue is about $'s," Harper pronounced in a handwritten note, the only way he communicated with underlings save for rare face-to-face meetings, according to testimony.
Novak conveyed this judgement to the cabal of PMO staffers working the issue.
Meanwhile, Duffy and Wright were increasingly communicating only through counsel--the Ottawa employment lawyer Janice Payne for Duffy, Benjamin Perrin, the PMO's in-house counsel, for the other side. Wright demanded that Duffy issue a mea culpa and commit to reimbursing the government. Duffy resisted. Things grew more complicated still after Duffy told Wright that even if he did want to repay, he did not have the money.
Eventually, the two parties hammered out a solution: Duffy would admit to--maybe!-making a mistake and publicly commit to repayment; Wright would make sure Duffy was not out of pocket, and would make arrangements to have him removed from the external Deloitte audit.
Nevertheless, Duffy remained troubled by the arrangement. On Feb. 22, PMO staffers were working full throttle to get his admission onto television when Duffy wrote Novak, who many take as a surrogate for Harper.
"Ray," he wrote, "I am cooked. I did nothing wrong. [...] I swing between the team player mode and do anything for pmsh [Prime Minister Stephen Harper] and it is time for me to say phack it. Let deloitte decide. If I leave it to them I have an avenue of appeal to the courts. If I take a dive for my leader when I am innocent the[n] I am totally at the mercy of the media the opposition etc."
Duffy made it to air. "I would never knowingly fiddle anything," he told CBC host Bruce Rainnie in Charlottetown. Just over a month later, after it became clear that Duffy's dubious expenses totalled almost three times the initial estimates, Wright ordered a CIBC bank draft in the amount of $90,172.24 and sent it to Duffy's lawyer.
4. BINDERS KEEPERS
Wright resigned as Stephen Harper's chief of staff on May 19, 2013. Two months later, Sgt. Horton paid him a visit. Was it Wright's impression that Duffy thought so highly of himself that he believed he could dictate terms to his handlers in the PMO?
"I don't think so," Wright replied, according to a transcript Bayne read in court. "I think this is a scared man, flailing around. He thinks I threatened him--he feels we're against him, he doesn't trust me. He thinks his very existence as a senator is at risk."
A year later, on July 17, 2014, the RCMP laid its charges against Duffy. Many wondered why Wright had not also been charged with bribery for his part in the $90,000 transaction. According to a source, the Mounties pondered this. One obstacle was the apparent absence of mens rea on Wright's part--the "guilty mind" a Crown must prove to win conviction. But at some point, too, Wright handed the RCMP the binder of materials Duffy had sent him in his efforts to prove he had a technical case for claiming his entitlements.
The binder proved key to the RCMP's approach to Wright. It included Duffy's calendars, office diaries, travel records and other documents, and formed the basis for the first 28 charges laid against him. The RCMP decided Wright would make a compelling witness at trial.
Wright's appearance in the witness box was scheduled to begin the second week of August. On Aug. 2, Harper dropped the election writ. There had always been a possibility that Wright and other former members of the PMO would testify mid-election. Thanks to Harper's own fixed-date election law, voting day was slated to fall on Oct. 19. By August, time was running out.
Things in the court had grown awfully dull. Spectators, even members of court staff, made a hobby of stifling yawns. There were abstruse legal arguments--case law on Cypriot irrigation systems, Italian birth records, a Thunder Bay man's Finnish military records--and oddly personal jabs between the Crowns and defence.
"Why not cover a real trial?" one prominent Ottawa criminal lawyer catcalled to reporters outside the courthouse one day, and the reporters felt this was a fair question.
Harper's election call changed all that.
"I walked down the hall to his office," Wright testified on Aug. 12, the first day of proceedings after a two-month adjournment. The office was Harper's in Langevin, and the discussion that Wright said ensued went to the heart of the scandal. "We are good to go from the PM," read an email Wright circulated after the meeting.
In court, Wright exhibited an introvert's tendency to fold his arms against himself. Trim to the point of miniature, he had a gangly awkwardness about him that, though he was 52, recalled a kid in his first suit. Then he stepped into the witness box, swung his gaze through the room and fixed Neubauer with a caliper-grip look. It was clear this was a man capable of brutal sternness.
Neubauer flew through his examination in a day. "I was doing a good deed," Wright told the room about his $90,000 payment to Duffy; he even quoted scripture to explain why he kept it secret--Matthew 6:3: "When thou doest alms, let not thy left hand know what thy right hand doeth." For about a day, Wright made the improbable story of why he gave Duffy a good deal of money feel plausible, reasonable, even like the only thing he could have done. "I couldn't think of another way of doing it," he said. For these few hours, Wright was a commanding force in the room.
Then Bayne got at him. From the beginning of trial, Bayne had always been fascinating to watch. There was something of Sherlock in the way he cast his eye about the room, shrugged one shoulder, then hunched over a podium--frequently he had two of them set up, weighted down with books--and glared at the witness.
But now, with Wright, there was something else going on--a shift in Bayne's approach.
The defining moment came on Aug. 14, Wright's third day of testimony, his second undergoing cross-examination. Bayne was asking why Harper aide Ray Novak's email to Wright, which relayed the prime minister's edict on an aspect of the Senate expense scandal, was one of very few communications on the matter Wright never gave police. It was a question that caused Wright to look awfully uneasy.
The Novak email, and a second from Benjamin Perrin, were both redacted in Wright's dossier of Duffy-related materials--labelled: "Privileged and not relevant." Bayne pointed out that Wright had provided every other email at his disposal touching on Duffy.
Why did it appear he'd redacted only these?
Wright explained that the Harper decision contained in Novak's email--"Had I known we were going down this road I would have shut it down long before this memo," the PM said of efforts by the Tory leadership in the Senate to nail down residence criteria for senators--was part of a policy discussion, and not germane to an ethics commission inquiry for which Wright originally prepared the materials.
RCMP investigators later inherited Wright's file as he'd first compiled it.
Bayne's suggestion was clear: Wright remained Harper's loyal servant, and had failed to include the Novak and Perrin emails because he was protecting his former boss. Harper's communication, after all, put the PM at the heart of high-level discussions around how to contain the Duffy scandal.
Bayne seemed reluctant to credit the explanation; indeed, it looked from the gallery as though Wright were daring the room to believe him. Bayne was rattling the foundations of Wright's credibility. Shaking his head, Bayne asked Justice Vaillancourt whether this mightn't be a good time to take the morning break.
It was during the ensuing recess, in the lobby outside, that reporters heard Harper's live hit from Hay River, N.W.T., a stop on the campaign trail. He was responding to a reporter's question about another email released in the course of the trial--this one from Wright to Novak and Perrin about Wright's $90,000 payment to Duffy.
"I will send my cheque on Monday," Wright had written the pair.
It was the third consecutive day the Duffy trial had hijacked Harper's agenda out on the hustings.
The email appeared to indicate that Novak knew all about the payment to Duffy. Wright had resigned over the issue. Shouldn't Novak, who'd replaced Wright as chief of staff, also be held accountable?
"I would simply not accept the premise of that question," Harper said. "These are the actions of Mr. Duffy and Mr. Wright. You hold people responsible for their own actions. You certainly don't hold subordinates responsible for the actions of their superiors."
Wright, the good soldier, was allowing his credibility to fray; Harper, who had been his captain, was letting him do it.
5. THE INSIDE MAN
Wright's ordeal in court prompted a buoyancy in Duffy's mood the likes of which the trial had not seen. Veritably he bounded through the corridors of the courthouse. He threw the door to the men's room open like he were entering a saloon, and complimented a reporter on his courtroom dispatch.
The Crowns, meanwhile, appeared confused by Bayne. His approach to cross did not always reflect a strategy focused on the 31 bribery, breach of trust and fraud charges laid against his client.
What on Earth, to name one example, did Conservative Party lawyer Arthur Hamilton's pop-psychology analysis of Wright, outlined by Hamilton during an RCMP interview he gave in the Duffy matter, have to do with how closely Duffy followed Senate rules?
Bayne didn't seem fazed by the question. He just read out the portion of RCMP transcript in which Hamilton said he believed Wright's experience working in Mulroney's PMO had led him to personally pay for Duffy's questionable expenses. Wright had once complained to Hamilton that Mulroney-era scandal had derailed the Tory agenda; he'd never permit anything similar to happen to Stephen Harper's government.
Not exactly exculpatory in any sort of Mike Duffy kind of way. Yet Bayne was at pains to trot it out--maybe because such chestnuts were newsworthy and would keep the trial in the headlines.
Similarly, when Justice Vaillancourt didn't permit Bayne to ask Wright questions based on his aide van Hemmen's RCMP interview, Bayne read the transcript out anyway, though Wright was still waiting outside for the judge to settle the objection. That interview contained van Hemmen's wonderfully direct assessment of the Tory leadership in the Senate: "Are you bad at your job or what?" It was juicy stuff; the press got it down in their notebooks.
Therefore the question was asked whether Bayne would have handled Wright differently had a federal election not been running in parallel with the trial. Was inflicting political damage part of the strategy, or simply a happy consequence? There was a view it was the former. Some said Bayne and Duffy's aim was to disrupt the election, and Harper's ability to advance his campaign, and that this had distorted the proceedings--never more so than when Wright appeared.
Wright, meanwhile, did not look good. He knew his testimony was kryptonite to the Conservatives out on the campaign trail. He watched Bayne warily, his eyes screwed into him like bolts. Why had the money Duffy used to reimburse Canadian taxpayers come, secretly, from Wright's personal account? Wasn't it political expediency, Bayne asked.
"I was happy to have people believe he had repaid," Wright said.
"To inflict on Duffy and the public a deceptive scenario?"
Then, on Aug. 18, Bayne broke the place apart. It happened late in the day, when he began quizzing Wright about his part in a conference call, on March 22, 2013, with Janice Payne, the Ottawa employment lawyer who represented Duffy at the height of the scandal. "And sir," Bayne asked, "who on your side was on that call?"
In the matter-of-fact way he had by then adopted in his dealings with Bayne, Wright replied:
"Ben Perrin and myself."
Bayne found this answer odd. So did anyone else who'd read "Exhibit 45(A),
Chronological Emails," a smooth-moving, defence-compiled series of emails bouncing between PMO staffers, bound in sequence like an epistolary novel (perhaps Bayne's most brilliant gambit). Odd because in one of these emails, van Hemmen, Wright's aide, is seen to inform Payne that Wright, Perrin and Harper's amanuensis, Novak, would be in on the call.
"Aren't you forgetting a third person?" Bayne asked.
"No. Um. Ray--Ray was not in on the call. He may have dropped into the office for part of it. But he was not on that call."
Bayne did not immediately respond-indeed, he allowed a pause to inject a foreboding silence into the room. The gallery was listening very carefully.
Already it had been a testy day of testimony. Bayne had in cross been probing what role Irving Gerstein, a Tory who announced his retirement from the Senate recently, had played in Wright's efforts to meet one of the conditions of his deal with Duffy--getting him withdrawn from the Deloitte audit.
Gerstein, who is chair of the Conservative Fund of Canada--the Conservative Party's fundraising arm--knew someone at Deloitte, according to court documents and trial testimony. Wright was under the impression that Duffy's repayment would render the Deloitte audit moot. But when confirming this proved elusive, Wright asked Gerstein to reach out to his contact at the firm.
Wright told the court this was so Gerstein could get representatives from Deloitte and the Senate together to resolve the issue. Bayne called this baloney and proposed a different scenario based on his interpretation of the email and documentary evidence already filed as exhibits here.
One of these was the Deloitte mandate setting out the audit's terms. PMO staffers had secured this document, which was clearly stamped "confidential." More damning were PMO emails suggesting Gerstein had received secret information from his contact about how Deloitte would find in its probe of Duffy. This had been billed to the public as an independent third-party audit; now it was looking like anything but.
"Just heard from Gerstein," Patrick Rogers, the PMO's former director of parliamentary affairs, wrote. "Here's the latest and most useful information yet from Deloitte." The skinny here was that Deloitte would not change its findings even if Duffy did repay; and that, because Duffy had not co-operated with the auditors--at the PMO's request--it could not find on his residency.
This meant Wright wouldn't be able to meet his commitment to Duffy that he be withdrawn from the audit, but it also meant the firm wouldn't find against him either.
Bayne put all of this to Wright.
"You're meddling with a strictly confidential audit!"
"We were not meddling with any audit."
"You're getting a report on it, before the public does, before the committee does. You're getting leaked information!"
Bayne permitted another pause to bloom into electric silence.
In the witness box, Wright struggled to get his view on the record.
"I completely disagree with you," he told Bayne. "Whether Sen. Duffy was technically onside or not with the rules was always irrelevant, what was relevant to me is that the expenses he was claiming were inappropriate and had to be repaid."
It was now that Bayne launched into his examination of the Wright-Payne conference call. Who was on it? Me and Perrin, Wright told him. Wasn't he forgetting Novak? No, said Wright.
"You know that Mr. Perrin's evidence will be he was on the call throughout?" said Bayne.
"I don't know that," Wright said. "I know the email suggests that he was invited but I don't know-that's just not true."
Bayne took his time considering this. The room grew entirely still.
"Does he just wander through your office?" Bayne asked Wright of Novak.
"He's got the office next door; I think he had other things going on--I think I wanted him on the call, but he didn't participate."
"I'm not going to take you through Mr. Perrin's expected evidence on this, but have you talked to Mr. Perrin? Since all this matter broke in 2013? Have you ever talked to him?" Bayne was looking Wright over.
"I spoke to him once or had an email exchange with him once at the very beginning."
"What about Ray Novak?"
"Yes. I've spoken to Ray." Wright choked these words out.
"You know that Ray Novak's public position on this is that"--Bayne injected a pause here-"he never knew that it was you that was going to be paying the money on this phony Mike-Duffy-repaid scenario. He never knew it was you until sometime later. Right?"
"And I take it you know that his position publicly is also that--'Oh, I was on the call but I left the call'? Right?"
"I think that's accurate--he popped in and out."
"And, 'I got Nigel's email but I didn't read it,' " Bayne said, mocking Novak's public position.
"I saw that," Wright responded.
"When did you last talk to Ray Novak?" Those in the courtroom had by now very nearly ceased breathing, so charged was this exchange. All of it appeared designed to drive the proceedings beyond the charges at hand.
"I would have spoken to him in"--Wright paused--"May or June."
"I want to be precise with you," Bayne said now. "When did you last communicate in any fashion, directly or indirectly, with Ray Novak ? "Probably two weeks ago."
A pause. That put their discussions at approximately the same time the election was called.
"For how long?" Bayne wanted to know.
"Um. It's basically messages."
"For how long?"
"A minute or two."
"And these are the messages that have no record, BBMs?"
"I don't know if that's true."
"Are they like the PINs? Secure messages?"
"It's BlackBerry Messenger--yeah."
"Yeah. Do you have copies of those messages?"
"Do I have copies of them? No."
Here Bayne now abruptly dropped the issue. He returned to the conference call. "Did you, in fact, on that call, indicate to Ms. Payne that you would be the source of the repayment of funds?"
"Yes," said Wright. "She said that she needed instructions from her client, but I felt that she was positively disposed, so that led to a conversation about my sending a cheque over to her."
Now Bayne began to quote at length from Perrin's 2014 interview with Sgt. Horton in Vancouver, where Perrin is an associate professor at the University of British Columbia's Peter A. Allard School of Law.
"Ray was in that meeting, and Ray heard this, and I remember looking at Ray to see his reaction," Perrin told Horton of the moment Wright informed Payne he'd personally be covering the $90,000 in living expense claims.
"I'll be providing my cheque," Perrin said Wright told Payne.
Horton, at this point, cut in: "So Ray in his interview last week said that he wasn't aware at this time that Nigel was going to repay the money."
"I've actually been shocked when I saw the ITO [information to obtain] coming out saying who knew," Perrin told Horton, "because Ray Novak was not listed in that, okay?"
6. WHAT THE BOSS KNEW
A scrum of journalists pounced on Bayne immediately after Justice Vaillancourt vacated the bench at the end of that day. One reporter made bold to ask Bayne whether she could take a photograph of the page from which he'd read during his cross of Wright--the section of Sgt. Horton's interview with Perrin in which Perrin placed Novak in the room with Wright when he described the $90,000 as "coming out of my pocket."
Bayne looked at the Crowns, who looked at Bayne, who turned back again and looked at the reporter. The police statement had not been filed as an exhibit in the trial; this was against the rules of disclosure.
"Come on guys, there's a f--king election going on," the reporter told the lawyers. The Perrin statement was so explosive there was no room for error in reporting its contents.
The Crowns watched as Bayne read the relevant section of the transcript out again; the reporters held their recording devices up as he did so.
It proved a bruising news day for the Conservatives. Though it was not obvious what good this did for Duffy in his fight against his charges, Bayne's re-enactment of the Perrin RCMP interview put Novak inside the controversy. These courtroom events also happened to fall on the day an older white-haired gentleman arrived at a Stephen Harper campaign stop in Toronto and berated news reporters for asking about Duffy.
"It isn't a deal, it's a nothing; Harper doesn't read income tax forms, you idiot!" the man said. "You're a lying piece of s--t. And you too!"
Whatever Duffy and Bayne's intentions, it is now clear that the trial hurt the Conservatives during the election. "It's one of the most negative events in the campaign for the Tories, in the same range as the appearance with Rob Ford," says Innovative Research Group pollster Greg Lyle, making reference to Harper's widely panned rally with Rob and Doug Ford in Etobicoke, Ont.
Lyle says the trial's biggest impact was on swing voters. While 15 per cent of core supporters felt more inclined to vote Conservative because of the Duffy proceedings--"Those are the core Tories who thought the media were being mean to them," Lyle says--30 per cent of "soft" or "second-choice" voters, people who might otherwise have remained accessible to the party, were less likely to, according to the pollster. "The Tory challenge in this campaign was to roll back that time-for-a-change vote--they had to increase the size of their pool," he says. "How big a deal was the Duffy trial? It was the thing in August that stopped the Tories from expanding that pool."
The effect did not last--Duffy dropped off the radar after his trial went dark in late August. For the Conservatives, the vacuum left behind merely invited new negatives, says Lyle, of which they had plenty: "The Tories still were not able to move the dial or increase their pool."
But back in courtroom 33 in August, election day was still two months away. The day after the Perrin revelations, Bayne strove to get the trial even closer to Harper. He read from an email, written by Wright on May 14, 2013, and sent to Harper's close aide Jeremy Hunt, as well as to two of Harper's front-line media handlers, Andrew MacDougall and Carl Vallee. Robert Fife, CTV's Ottawa bureau chief, had just asked the prime minister's office whether Wright co-signed a loan to help Duffy secure funds and repay his expenses. The jig was up.
"The PM knows, in broad terms only, that I personally assisted Duffy when I was getting him to agree to repay the expenses," Wright said in the email. "On the specific matter, I did not co-sign a loan."
Bayne swooped in on what "personally assisted" might mean. "Because," he said, "based on your earlier evidence--that the only personal contribution to Sen. Duffy repaying that you made was your provision of the funds--and that the PM knew that you personally assisted Sen. Duffy in getting him to agree to repay, there can't be anything else personal that you told the prime minister--because that's the only personal part."
Bayne was trying to get Wright to admit he'd told Harper about giving Duffy the money.
Holmes jumped to his feet. "With the greatest of respect," he began, "that'll be a submission I suppose in December--although at that point, with the election being over, it won't really matter as much, I dare say."
Bayne audibly scoffed.
"This," Holmes continued, "seems to be entirely politically motivated, as opposed to relevant to anything in this trial. Mr. Duffy, Mr. Bayne may have an agenda, but I don't think the court should be party to it."
"Can the witness step out?" Bayne asked.
"Yes," said Justice Vaillancourt.
Wright marched out. As always when banished from the room during an objection, Wright began pacing in front of the courtroom doors, back and forth, awaiting his invitation to return.
"Your Honour," said Bayne, chuckling. "My friend Mr. Holmes shouldn't let his anger get the better of him. And to make intemperate statements like 'playing out political agendas.' It is clear that this man's credibility is highly relevant here. That's why I'm pursuing them. That's all I'm doing here. It's not inappropriate cross-examination."
Holmes rose to his feet again. He dropped his voice to a near-whisper. "Except that he has the answer on that point," he said of Bayne. "To go further on a point that is immaterial isn't appropriate. There are themes in Sen. Duffy's emails where sort of 'visiting political consequences upon the PMO' are clear."
Then Holmes raised the events of the previous day. "I mean, yesterday, Mr. Bayne read out passages from Benjamin Perrin's statement, but didn't ask any questions about them. And those have fuelled a whole media cycle--to a media scrum when we closed things down at the end of the court day." Holmes gestured to the gallery. "That's why most of these people are here. But that isn't reason enough to allow him to continue."
Justice Vaillancourt made short work of the objection. "I find the question by defence appropriate, and we'll all find out what the answer is," he said.
Wright trekked back into court. Bayne repeated the question of what Harper knew. "I was asking you, if that is true, what you told those people, that the broadest term in which you personally assisted Sen. Duffy is: 'Well, Mr. Prime Minister, I actually paid the money, that's how I assisted.' And you had agreed there was no other personal way you had assisted."
"The PM, while I never engaged with him a lot on this, knew I was engaged personally in working with Sen. Duffy," Wright replied.
"And so you say those words do not amount to an admission that you told the prime minister about the only personal part you did play in this, in assisting him to pay--namely that you had provided the funds."
7. NICE SUIT, WHO DIED?
On Aug. 25, during a break from his second day of testimony, former PMO director of issues management Chris Woodcock was seen in the hall of the Ottawa courthouse in conversation with a rotund, unshaven man wearing a red, oversized St. Louis Cardinals hoodie. The man in the hoodie was later identified as Nick Koolsbergen, then the PMO director of issues management, who had been following the proceedings from the trial's overflow room.
Another man, Conservative campaign staffer Christopher McFarlane, had also been monitoring the trial in the overflow room that day, and had initially drawn attention to himself for his habit of wearing a tuxedo to the courthouse each day. Sgt. Horton, who had once whiled away hours guessing which passersby on Sparks Street were PMO staffers based on their dress sense, had been eyeing the pair for days.
Once discovered, their presence at the trial--and especially Koolsbergen's contact with Woodcock while he was still a witness-generated yet more unwelcome headlines for the Tories. Asked during a campaign stop whether Koolsbergen had been "instructing" Woodcock, Harper replied: "Look, these are matters before the court and we don't interfere in them."
Conceded Kory Teneycke, a Harper spokesman: "I guess the appearance of that is not great."
Sure enough, the Harper Conservatives lost the election on Oct. 19. When the Duffy trial resumed in November, the media seats behind Horton sat largely empty.
Donald Bayne wandered the courtroom aisle between the pews with his hands in his pockets, eyeing the emptiness, his grin as always a combination of rueful and wicked. "Now it's just a criminal trial," he said. It was not the end, but it was sweet.
Caption: Dumped: Duffy (right) felt his former boss, Stephen Harper, threw him to the wolves
Caption: For the defence: Donald Bayne represented Duffy
Caption: Work it: Duffy hired Croskery (right) as personal trainer then as Senate consultant
Caption: Scrum: Reporters flocked to the courthouse each day of the trial
Caption: Witness: 'I was doing a good deed', said Wright
Caption: The call: (from left) Perrin, Novak and Wright. Who was there, and when?
Caption: Waiting: The trial is now over, with a verdict expected in April