Mike Duffy trial: Senate expense report has 'inherent reliability,' senator's lawyer argues

The judge in the Mike Duffy trial should be able to consider a Senate report that included the findings of an outside auditor because it's a public document that has 'inherent reliability," the suspended senator's lawyer argued in court today.

Trial proceedings were cut short last week to give both sides time to prepare legal arguments

Mike Duffy's trial resumed in a provincial courtroom in Ottawa today, with the Crown and defence arguing over the admissibility of a 2010 Senate report. (Sean Kilpatrick/Canadian Press)

The judge in the Mike Duffy trial should be able to consider a Senate report that included the findings of an outside auditor because it's a public document that has "inherent reliability," the suspended senator's lawyer argued in court today.

The trial proceedings, which began April 7, were cut short last week by Ontario Court of Justice Judge Charles Vaillancourt. He gave both the Crown and the defence time to prepare their cases on the issue of whether the annual report on internal audits 2009-10, issued by the Senate internal economy committee, should be considered as evidence.

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 provided by the prime minister's former chief of staff Nigel Wright.

The Crown believes the report shouldn't be considered as evidence, claiming its conclusions are hearsay. But while Duffy's lawyer Donald Bayne agreed that the report is hearsay, he argued in court this morning, on day 18 of the trial, that the report is an exception to the hearsay rule.

Bayne said that the report should be admissible because it's a public document — it was made by public officials, intended to be a permanent record and accessible to the public — meaning it is has "inherent reliability."

The report included the findings of three audits that were carried out over the previous year by independent auditing firm Ernst and Young — including one that dealt specifically with senators' office expenditures.

In its report to the committee, the auditors noted the Senate "should provide clearer guidance and criteria on which activities constitute a parliamentary function." During the trial, Bayne has argued that the rules guiding senators were ambiguous and unclear.

Bayne argued that the report didn't merely repeat or rubber stamp the findings of Ernst & Young, but was reviewed and validated by the Senate audit sub-committee — which includes the clerk of the Senate and senior Senate administrative management — as well as the Senate internal economy committee.

"This is not, as the Crown tries to mischaracterize the 11th report, the Ernst & Young report at all. It is a number of steps removed from the Ernst & Young report. It is explicitly, and in substance, the report of the Senate standing committee."

Bayne is expected to wrap up his argument Tuesday morning, at which time the Crown will make its case. It's unclear whether there will be time for any witness to testify on Tuesday.

Vaillancourt said it could take him until sometime in June to reach a decision on the issue. But the court will continue to hear from other witnesses in the meantime. 

The adjournment last week put on hold Bayne's cross-examination of the former head of Senate finance, Nicole Proulx. Proulx had returned for her sixth day in the witness box, where she has undergone intense, and at times combative, grilling by Bayne about the administration's rules and regulations regarding senators' expenses.

Proulx will return to testify after Vaillancourt has ruled on the admissibility issue.

Court is still waiting to hear from Gerald Donohue, Duffy's friend and a key witness. Last week, Bayne told the judge he was worried that a delay in the trial might endanger the appearance of Donohue, who is recovering from serious health issues. Bayne said that Donohue's health is a "grave concern," and he "may not be with us."​

Duffy awarded contracts worth roughly $65,000 to Donohue, but the RCMP have alleged that "little or no apparent work" was done in exchange for the payments.

The Crown has argued that Donohue instead used some of that taxpayer money to pay for inappropriate or non-parliamentary services for Duffy.

Court has heard that Donohue issued cheques for services expensed by Duffy that included payments to an office volunteer, a makeup artist, a photo processing firm and a personal fitness trainer. Cheques signed by Donohue to pay for those services came from either Maple Ridge Media, or later Ottawa ICF, companies owned by Donohue's family, court has heard.​

With files from Kady O'Malley