Mike Duffy trial: Defence argues for admissibility of secret Senate audit

The Senate shouldn't be allowed to keep secret aninternal audit, a lawyer for the Mike Duffy defence team argued today, saying the legislativebody has kept the "curtain closed" on information it does not want the court to hear.

Lawyersat the Duffy trial in Ottawa werearguing Thursdayover whether details of a 2013 internal Senate audit on the residency status of senators are admissible.The issue is whether the Senate has the right to assert parliamentary privilege over thisreport, meaningits details would be kept secret from the public.

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Duffyhas 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 from the prime minister's thenchief of staffNigelWright.The suspended senator's trial, which began April 7 in the Ontario court of justice, is in its31stday.

Lawyer PeterDoody, representingthe defence, said there is no recognized privilege of the Senate or Parliament that would allow a report of that kind to be kept secret.

Doodysaid that a series of Senate reports relating toSenate expenses have already been entered into evidence in the trial, meaning thateither noprivilege was asserted in those cases or that the Senate waived that privilege. He said the 2013 internal audit report shouldbe treated the same way.

"The Senate has lifted the curtain of what it wants the court and defence to see while keeping other parts of the curtain closed covering information dealing with exactly the same issue which they don'twant the defenceor court to see,"Doodysaid.

"Fairness and consistency require that all be shown," he said.

Doodyalso argued that it'snot necessary to the "constitutionalfunction" of the Senate that such a report dealing with the expense claims of senators be kept secret.

"It's hard to understand why the public interest in a properly functioning Senaterequiresthat reports about members' expense accounts be kept from the public eye," he said.

Duffy's maindefence lawyer, DonaldBayne,wants the report enteredas evidence,believing it will support his argument that the rules of the Senate are vague and ambiguous.The audit was conducted by Jill Anne Joseph, then director of internal audit at Senate administration, who found there was a lack of clear criteria surrounding the issue of residency.

Residencyis one of thecentral issues in the case against Duffy. He designated his home in P.E.I. as his primary home, making him eligible to claim meals and living expenses for his time in Ottawa,even thoughhe has lived and workedin Canada's capital since the1970s.

The Crown in Duffy's trial disputes that P.E.I. is hisprimary residence and contends that Duffy was not eligible for those claims.

But Senate lawyerMaximeFaille, presenting an overview of his case, said the privilege being asserted in this case is not novel, but part of an established core privilege that hasalready been plotted by the courts

"It couldhardlybe morepedestrianor conventional," he said.

"It is the very definition of what is covered by the essential categories of parliamentary privilege freedom of speech control overdebates and proceedings, and the right to deliberate in camera."

Doodysaid there was not enough evidence to confirmthat the report was, in fact, discussed in camera (behind closed doors), let alone tabled in camera. And even if it was,Doodysaid, because it's a report and not oral testimony, it should not be protected by privilege.

But Faille countered it makes "not a whit of difference" whether the information being presented incamerawas provided orally or in document form.

As for the allegation of the Senate being inconsistent with how it releasesreports, Faille said that argument is "simply irrelevant." Priorpronouncements by courts have asserted that Parliament retains theexclusiveauthority as to whether and when to exercise the assertion of privilege, he said.

Faille will continue his argument on Friday.