Former Supreme Court justice's Senate report could signal trouble for Mike Duffy

Retired Supreme Court justice IanBinnie was careful last month to avoid linking his report on Senate expenses to the Mike Duffy trial, but several of his findings strike at the heart of the P.E.I. senator's criminal proceedings

"I was very circumspect not to get into issues that would overlap or conflict with the Duffy trial. It's a totally different process,"Binniesaid when he released hisreport on "questionable" and inadmissible expenses identified by the auditor general.

A central issue in Duffy's case was the designation of the senator's home in P.E.I. as his primary residence, which made him eligible to claim meals and other expenses for his time in Ottawa,despite the fact thathe has lived and workedin Canada's capital for decades.

Duffy's trial reconvenes tomorrow to hear the judge's ruling on 31 charges of fraud, breach of trust and bribery. Duffy pleaded not guilty to all charges.

Binniewas asked to adjudicateon a similarissue when reviewing the auditor's findings for ConservativeSenatorPierre-HuguesBoisvenu.

The 'fiction' of primary residence

Boisvenuclaimed Sherbrooke, Que., was his primary residence even though he had lived inthe Ottawa region for the majority of time under consideration by the auditor general's investigation.

Binniewrote in his report thatBoisvenuhad no right to claim living expenses and per diems in 2012 because he spent only 45 days at his "primary" residence in Sherbrooke, in large part due to divorce proceedings.

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Binnie dismissed the claim that financial statements and a provincial health card alone items Duffy also referred to as proof of residence in his case were enough to determine a senator's primary residence.

"Regardless of the various registrations, SenatorBoisvenuwas in fact resident in [the National Capital Region] in 2012," he wrote. "If in fact the senator was not primarily resident in Sherbrooke in 2012, he ought not to receive financial allowances based on the fiction that he was."

Boisvenu'slawyer argued that there was nothing in the Senate rules that demanded a senator spend a certain number of days at their primary residence, somethingBinnieacknowledged was true.

But the former justice said that a degree of common sense should be considered when filing living expense claims, saying anything else would bedisingenuous.

"Primary residence is a matter of fact," he concludes. "A senator is not entitled to claim travel status when he is living at what is in fact his primary residence," adding that Boisvenu should be compelled to repay the $20,467.33 in expenses he had claimed.

Duffy's criminal defence lawyer, DonaldBayne, has tried to present a similar defence as that employed by Boisvenu, arguing that Senate rules around residency were vague at best.Duffy needed to deem hisCavendishcottage as his primary residence as it was his home in the province he was appointed to represent, Bayne argued.

Duffy claimed living expenses and per diems not because he was out to defraud the Senate, but rather to fulfil his constitutional obligations as the senator for P.E.I., Bayne said.

Duffy says he was forced to file claims

Duffy himself said in court he was told by Senator DavidTkachuk the then-Conservative chair of the Senate's internal economy committee to file the expenses so as not to "create any light between you and any other senator who's on travel status when they're in Ottawa but most particularly any P.E.I. senator."

"He said ... to not do so could create controversy about whether or not you are truly a Prince Edward Island senator, a resident of P.E.I., you're constitutionally qualified, you must do this," Duffy saidTkachuktold him.

But in his report, Binniesaid the expense claims are a matter of Senate administrative policy and are not a reflection of a senator's constitutional right to represent a province in the Red Chamber.

"This has nothing to do with his constitutional qualification to continue to sit as a senator for Sherbrooke," he said ofBoisvenu'scase. "The issue here is the Senate travel policy, not the constitution."

Tkachuk haschallengedDuffy's testimony, telling reporters he remembers their conversationabout living expenses much differently.

"Iwould have told them that if you're staying here in Ottawa that you should be claiming expenses, because your primary residency is in your home province.And if I was living here in Ottawa, and that was [my]primary residence, I shouldn't be claiming expenses,"Tkachuksaid, echoing the conclusion reached byBinnie.

Duffy faces expulsion

The speculationwill stopThursday when CharlesVaillancourt, the judge who presided over Duffy's trial, delivers his ruling.

If Duffywho is currently on a leave of absence from the Senate with payis convicted of just one criminal chargeand receives anything other than a discharge at sentencing, he will be suspended from the upper house, a Senate spokesperson told CBC News.

His $142,400 a year salary would immediately be cut off. The resources that are available to a senator, including his office, staff, and research budget (which has been at the heart of his criminal proceedings), would also end.

Duffy's suspension would remain in effect until all of his legal avenues have been exhausted.

If a conviction is upheld after an appeal,it would then be up to his fellow senatorsto decide whether a permanent expulsion is appropriate.

If Duffy is cleared of all criminal charges, he will return to work right away as if the whole matter athree-year long legal sagahad never happened.