Column: A question of judgment

We’re a long way from any verdict in the Mike Duffy trial, but two days into court proceedings, common sense and accountability are already down for the count.

How about the common sense of where Duffy lived when Stephen Harper appointed him?

It essentially didn’t matter, under Senate rules, because if he was appointed from Prince Edward Island then Duffy had to declare P.E.I. as his primary residence. And he did.

But what if he actually lived in suburban Ottawa, which he did, according to all indicators?

No one in the Senate was going to challenge him on that. After all, he arrived there on Harper’s recommendation and surely he had been properly pre-vetted.

Duffy had more than enough rope to swing way wide of any common sense, because when it comes to the administration of the Senate, it appears it can be summed up in a seven-word motto: “Rules? We don’t need no stinking rules.”

Duffy, the newly minted senator, may have sprinted to the trough, but the lack of Senate accountability smoothed the journey.

In fact, he may have been 62 years old, with four decades of Ottawa establishment life behind him, but his lawyer Donald Bayne repeatedly depicted him as some type of doe-eyed “rookie” when he was appointed in late 2008, and what was a poor rookie to do with such lack of rules and guidance and lack of specifics?

“Rookie” Duffy certainly knew how to game a system ripe for gaming, and documents showed he was claiming his per diem before he even sat in the Red Chamber.

He deemed himself eligible for that $81.55 per diem even if he was dining at home in his suburban Kanata home, something which, according to RCMP documents, particularly fried Harper’s departed chief of staff, Nigel Wright, who declared himself “beyond furious.”

As Bayne had former Senate law clerk Mark Audcent concede, there is nothing in the Senate administration regulations that sets rules for Duffy’s Prince Edward Island home, no minimum number of hours spent there, no percentage of nights, no seasonal requirement, nothing about its value or how long he owned it, or whether it was a cottage.

Audcent, in briefing new senators, warned all newcomers to be vigilant about the time they spent in the province of their appointment, and agreed there is a “natural tension” between a senator’s time spent in the capital and in the province, but he said there is no single indicator that defines permanent resident.

Instead, he said, it is a series of indicators that determine a primary residence, including where you pay your taxes, where you get your government services, even where you bowl.

In order to set rules or build a case, day two fell into the comical, with Bayne at one point relying on an Oxford dictionary to define primary residence, even offering to file the dictionary as a court exhibit.

Then we got into the details of the $98,000 Duffy spent to upgrade his Prince Edward Island residence.

Bayne tried to have Audcent agree such an investment showed a commitment to a primary residence.

Well, Audcent said, that depends on the wealth of the senator and the value of the property. That could just mean a new bathroom, he said.

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But this was P.E.I., Bayne reminded him.

Ah, yes, said Audcent, that would be an indicator of permanent residence. That’s just it. There are indicators, but no absolute indicator.

The crux of the day was this – Duffy was entitled to his entitlements, as it was put in one of Ottawa’s defining comments from a previous scandal, but he didn’t have to claim them if he wasn’t looking at his new sinecure as a personal cash cow.

Still, there would be no challenge from the Senate.

After all, Audcent said, he had been appointed by the prime minister and the law clerk wasn’t a policeman.

That’s why the Duffy appointment will always go back to the question of Harper’s judgment.

And as for Duffy?

There is a court on Laurier Ave. in the capital and a court of public opinion and a victory in one does not mean victory in the other.

Tim Harper is a national affairs writer. His column appears Monday, Wednesday and Friday.

Copyright 2015 – Torstar Syndication Services

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