Senators Mike Duffy, Pamela Wallin and Patrick Brazeau, who were suspended in the previous Parliament because of the scandal over their expenses, are back on the payroll.Justin Tang/The Canadian Press
Mike Duffy cannot get access to an internal audit into the living expense claims of other senators to defend himself against charges of fraud and breach of trust, a judge has ruled.
Mr. Duffy and his lawyers, as well as a group of media organizations, tried to convince Judge Charles Vaillancourt to force the Senate to make public a 2013 internal report into the living allowances of senators. However, Judge Vaillancourt sided with the Senate legal team, which argued that the document was protected by the principle of "parliamentary privilege."
Mr. Duffy's trial will resume on Nov. 18, at which point the prosecution will finish presenting its case. Mr. Duffy's lawyer is then expected to call the former broadcaster to testify in his own defence, but it will not be able to rely on the audit that was conducted by Senate official Jill Anne Joseph two years ago.
Had the findings of the audit been made public, they would have revealed how many other senators received an allowance for living in a "secondary" residence in Ottawa. In Mr. Duffy's case, he received tens of thousands of dollars in expenses for living in his long-time home in Ottawa, by stating that his "primary" residence was located in Prince-Edward-Island.
It will be up to Judge Vaillancourt to determine whether Mr. Duffy committed a crime by claiming the living allowance.
In his ruling on the audit, Judge Vaillancourt noted that parliamentary privilege "traces its origins to the 16th and 17th centuries in England and was designed to forestall the courts of justice from interfering in the workings of Parliament."
In this case, the principle was used by the Senate to prevent the internal document from being tabled at Mr. Duffy's trial.
"I find that the Senate did not waive its privilege over the document generated by Ms. Joseph. Accordingly, I find that parliamentary privilege applies to Ms. Joseph's Report," Judge Vaillancourt said in his ruling.
Mr. Duffy's lawyer, Peter Doody, argued the Senate had willingly released documents that were used by the RCMP to build its case against Mr. Duffy, "while wanting to keep secret the internal audit report which may be favourable to senator Duffy." However, Judge Vaillancourt said the document was never intended for public consumption.
"I am satisfied that the circumstances of this case trigger the recognized categories of parliamentary privilege, namely, freedom of speech; exclusive cognizance of and control over debates and proceedings; control by the Houses of Parliament over their internal affairs and disciplinary authority of its members," he said in his ruling.
Peter Jacobsen, the lawyer acting for various media organizations, including The Globe and Mail, failed to convince Judge Vaillancourt that freedom of speech overruled parliamentary privilege in this case. In particular, Mr. Jacobsen said that the principle needed to be "delineated in a manner that strictly reflects the core legislative and deliberative functions of legislators."
"I enjoyed reviewing the submissions and material tendered by Mr. Jacobsen on this Application. They attempt to persuade the court to take a more expansive approach to the issue of parliamentary privilege and to lift the veil of parliamentary privilege in order to allow the public-at-large the opportunity to access the internal workings of the democratic process," Judge Vaillancourt said.
"Regrettably," he added, he found that the audit "meets the requirements of parliamentary privilege and that such privilege should not be lifted in this case."
Mr. Duffy faces 31 charges of fraud, breach of trust and bribery, which were laid in July, 2014. The RCMP began its investigation by looking into Mr. Duffy's living allowances, before expanding the probe to other aspects of his Senate budget. The bribery charge is related to a deal in which the one-time chief of staff to former prime minister Stephen Harper, Nigel Wright, gave $90,000 to Mr. Duffy to pay back the controversial expenses in a bid to put an end to the controversy.