Mike Duffy's testifying in his own defence not without risk

When, as expected,Mike Duffy takes the witness box in Ottawa courtroom 33 this week,the senatorwilltackle whathe has been itching to do since his trial began offer, in his own voice, hisdefence against the 31 charges offraud, bribery and breach of trust he now faces.

It's a legal strategy that comes with both advantagesand pitfalls, but at the same time it would almost certainly be the most compellingchapter of the defence narrative put forth by Duffy's lawyerDonald Bayne since the trial began in early April.

• Can't see the liveblog?Follow it here
• Gerald Donohue says senator didn't receive kickbacks
• Crown grills key witness over cheques, contracts
• Harper's gone, but Senate scandal lingers: Rosemary Barton

"The whole point of cross-examination is to build the defence case in a coherent way, you are telling a story. And usually that crescendos with your client completing the story," says Jason Neuberger, a Toronto-based criminal lawyer who hasbeen following the trial.

One of Bayne'sgoals, Neuberger says, is to re-establish the senator'scredibility."It's' very hard now to complete that picture without him testifying."

The Duffy trial resumes Monday at 9 a.m. ET, when the Crown is expected to call its final witness, Senator George Furey. Furey was appointed Speaker of the Senate last week, but in 2013 was the Liberal representative on the committee that changed an audit report on Duffy's expenses.

As for the garrulous Duffy, this week will be his first chance to speak at length publicly since before the trial began. He hasstayed largely silent, ignoring the throngs of reporters as he would enter and exit the Ottawa courthouse. However, Bayne has repeatedly saidthat his client would testify on his own behalf.

If that happens, this will be hisopportunity tojustify, legally, hisseries of controversial expenseclaims expenses the Crown contends were not related to Senate or government business and should not have been billed to the taxpayer.

He may also see this as his moment to try to rehabilitate hispoliticaland public reputation.

How longDuffy would be in the witness box is hard to say. Some of the Crown witnesses spent days facing a barrage of meticulous cross-examination by Bayne.

Bayne is likely to be just as thorough with his client, delving through all the allegations, while allowing Duffy to comment and provide explanations.

Chief among them will be the fact that Duffy,a senator representingP.E.I.,had designated his home in that province (a renovated cottage) as his primary residence, which he felt allowed him to claim, underSenate rules, housing expenses for his house in Ottawa.

But the Crown has argued thathis primary residence was,in fact, in Ottawa, where he owned a home and had lived most of his adult life,meaning he wasineligible for these claims.

Travel claims

Bayne will likely also takeDuffy throughthe seriesof travel expenses he claimedfor events that the Crown contends had nothing to do with government business. Thoseincluded partisan fundraising events, aB.C. luncheon, private funerals,and aPeterborough, Ont., dog show.

Duffy will also have to explain the business arrangement thathe developedwith his friend, Gerald Donohue, in which Donohuereceived $65,000worth of government contracts.

It was from that pool of money thatDonohue wrote chequesfor expenses includingfor apersonal fitness trainer, makeup artist and professional photos incurred by Duffy, and which the Crown says would not havebeen approved by Senate finance officials and were therefore ineligible claims.

Then there's that $90,000 payment of Duffy's outstanding expenses by Stephen Harper's former chief of staff, Nigel Wright. Accepting thatconstituted a bribe, the Crown alleges.

Throughout the trial, Bayne has meticulously attempted to counter all the Crown's charges. He has suggested that his client broke noSenate rules as the rules were vague and ambiguous. and he has argued thatDuffy's travels were all related to Senate business, as were any expenses he claimed.

The arrangement with Donohue, while "administrativelyirregular"was not illegal, Bayne has proffered.And the alleged bribe? Nonsense, hesuggested, arguing that the whole arrangement was forced upon his client by the former prime minister's office trying to make a controversy go away.

Double-edged sword

Bayne is a very skilled courtroom lawyer and has certainly thought his strategy through. ButNeubergersays that aCrown's case can often be rehabilitatedby putting the accused inthe witness box.

Having Duffy testifymight damage the success that his lawyer has had on cross-examination of other witnesses.

Given the number ofallegations of fraudulent conduct that the senator faces,by not testifying and leaving the evidentiary recordas it is, he runs the risk of being convicted on some of those charges, suggestsOttawa-basedlawyer Jason Gilbert, who has also been following the case.

WhileBaynehas been quite effective at neutralizing some of the more high-profilefraudallegations, some of the housing, travel and other expenses need to be addressed by Duffy himself,Gilbertfeels.

"I think if it's just kind of left out in the open, sort of dangling out there, without being commented on or potentially an explanation from Mike Duffy, he may stand to face conviction of some of that."

Still, Neuberger says"there are certainexpenditures and issues Ithink a crown attorney will enjoy cross-examining him on.So it's a tough call in this case."

The big concern for Duffy, says Neuberger, is that that theCrown will begiven aplatformto challenge Duffy'sdecision-making.

Hecould face questions, Neubergersuggests,like:'Well Mr.Duffy, you're a very bright man who has covered politicsfor 30 years of your career as one of the most leadingpolitical reporters and analysts in Canada. Surely an expenditure for X, in your mind would not be related to your governmentbusiness. Right?"

Still, there are also serious advantages for Duffy testifying in his own defence.

"The real benefitis [Duffy]gettingout in front of it, and saying 'Ithought these were legitimate, here's why, the rules were very all over theplace,'" Neuberger says."He might explain why certainexpenditures that lookabsurd arenot. He might simplysay 'Ialwaysthought that these expenditures were legitimate.'"