OTTAWA – Mike Duffy’s lawyers are accusing the Senate of deliberately withholding an internal audit report about residency that could prove the suspended senator’s innocence.
The former Conservative senator’s defence team is expected to argue in court next week that a 2013 report about a residency audit of all senators is “favourable” to Duffy and that is why the Senate is refusing to release it.
The Senate “wants to keep secret the internal audit report which appears to be favourable to Senator Duffy, and the later draft report on Senator Duffy,” says a factum filed in the Ontario Court of Justice by lawyers Peter Doody and Donald Bayne, the latter who represents Duffy in his criminal trial.
“Fairness requires that all expense account reports be disclosed.”
At issue is an internal audit report about residency from a former Senate official that has never been released and was allegedly met with resistance from senators on a secretive committee tasked with reviewing expense claims.
The Senate’s lawyer has argued the internal report written is constitutionally protected by parliamentary privilege – the right of Parliament to protect its own “internal affairs.”
READ MORE: Senate invokes immunity against Duffy request
But even if the judge sides with the Senate, the defence will ask for another hearing to decide whether the report should be released “because it is necessary to demonstrate Senator Duffy’s innocence,” the factum says.
It will be up to Ontario Court Justice Charles Vaillancourt, who is presiding over Duffy’s lengthy criminal trial, to decide.
In RCMP interviews filed with the court earlier this month, the author of the internal report, Jill Anne Joseph, told investigators that she found a lack of clear criteria surrounding Senate residency rules.
She told police that some senators were against the report, such as Conservative Carolyn Stewart Olsen, who was more concerned with what the media might do with the information.
“I did up my little report but they didn’t like it because, I argued that there was a lack of clear criteria surrounding residency and they said, ‘no , no, no, it’s very clear,’” Joseph said in a police transcript.
Duffy is facing 31 charges of fraud, breach of trust and one for bribery related to his travel and expense claims between 2009 to 2012, as well as $90,000 from Prime Minister Stephen Harper’s former chief of staff Nigel Wright to back them back.
The charges relate to Duffy’s travel on alleged Senate business, Senate contracts, and a yearly living allowance the Prince Edward Island senator claimed while in the Kanata, Ont. home he owned for years.
Duffy has pleaded not guilty to all charges.
Bayne, his lawyer, has argued in court that the expense rules weren’t clear, and that Senate administration didn’t properly communicate or enforce them.
Senate ‘picks and chooses’
In new court documents, Duffy’s lawyers say the Senate’s privilege argument doesn’t hold water.
“Secrecy of senators’ expense accounts, and reports about them, is not necessary to the Senate’s core constitutional duties of legislating and holding the government to account,” reads the factum obtained by Global News.
The lawyers argue that the Senate, under newly-named Conservative Speaker Leo Housakos, has publicly declared its intention to be transparent and accountable, and has released numerous documents to both the public and the defence team.
Included in those documents are seven drafts of the Senate internal economy committee’s report into Duffy’s audit, which show how the Tory-dominated committee removed critical paragraphs about Duffy as the expense scandal was heating up, and after Wright paid his bill.
WATCH: Global News has obtained copies of the draft audits of Mike Duffy’s spending. Mike Le Couteur shows us what was left out in the final version.
But for some reason, the Senate won’t release Joseph’s internal audit report about residency.
“The Senate picks and chooses documents over which it claims privilege,” Duffy’s lawyers write.
They argue the Senate has already waived its right to privilege by referring Duffy’s expenses to the RCMP, voluntarily providing internal Senate information about expense claims, complying with RCMP production orders and allowing witnesses to be questioned about Joseph’s internal audit by police.
The lawyers’ application to the court also includes a warning letter from accounting firm KPMG, which audited the Senate in 2013.
The firm warns in the Sept. 17, 2013 letter that Senate expense claim policies for housing and travel were “not sufficiently detailed with respect to eligibility and documentation requirements to ensure amounts claimed were appropriate.”
“The potential effect of this deficiency is that ineligible expenses may be approved and paid,” it says.
In a reply letter to former Senate speaker Noel Kinsella on February 26, 2014, Senate clerk Gary O’Brien said the upper chamber added additional controls to Senate travel and residency policies.
But O’Brien writes that primary and secondary residence declaration was “amply clear” prior to 2013, and that senators who claimed their primary residence as 100 kilometres from the National Capital Region could not claim living expenses without a secondary residence in the NCR used for Senate business.
“The Senate has concluded that this language is unambiguous and, plainly, if a senator resides primarily in the NCR, he or she should not be claiming living expenses in the NCR,” he wrote.
Duffy’s trial resumes June 1 and runs until June 19. It will likely extend for several more weeks in the fall or winter.
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