It's showtime!

The trial of suspended senator Mike Duffy, is set to begin Tuesday. Here's a break down of the 31 charges the former conservative is facing.

Mike Duffy trial judge no stranger to controversial cases

Ontario Court Justice Charles Vaillancourt, the judge in Mike Duffy's fraud trial, is a good choice for the politically charged trial, lawyers say

By Donovan Vincent/News Reporter
Sunday, April 5, 2015

The Toronto judge who’ll preside over the Mike Duffy fraud trial is no stranger to complex and controversial cases, say lawyers who’ve appeared in his courtroom.

Duffy, the former journalist and suspended senator who faces 31 charges including breach of trust and fraud, is scheduled to stand trial in front of Ontario Court Justice Charles Vaillancourt, starting this Tuesday in Ottawa.

Vaillancourt, who was a small claims court judge in Algoma, Ontario and a school teacher before being appointed to the Ontario Court in 1990, is a good choice to preside over the highly sensitive, politically charged trial, lawyers say.

“His temperament is ideally suited for a high-profile case like this,” says Toronto defence lawyer Julian Roy. “He’ll give both sides ample opportunity to make their case.”

Vaillancourt is a very experienced trial judge known for his thoughtful and detailed judgments along with his ability to ensure his trials proceed in a “respectful, fair and orderly manner,” says defence lawyer Howard Rubel.

And John Struthers, a defence lawyer and provincial Director for the Criminal Lawyers’ Association, said judges who assigned Vaillancourt to the Duffy trial “looked through the roster and made a very intelligent decision about who to put in charge of such a controversial case.”

Justice Charles Vaillancourt will be weighing the evidence in Mike Duffy's fraud trial, which gets under way in Ottawa April 7. The Toronto-based Ontario jurist is known as an experienced trial judge who is fair to both the defence and crown. (Ontario Court of Justice)

Vaillancourt was called in to hear the Duffy case after Justice Hugh Fraser, the regional senior judge for Ontario’s east region, asked Ontario Court Chief Justice Annemarie Bonkalo to assign a judge from another region, said a spokeswoman for the office of the Chief Justice of the Ontario Court.

An outside judge was sought to ensure there are enough local judges available to meet Ottawa’s criminal case scheduling demands, said Jane Warwick, spokeswoman for the chief justice’s office.

Vaillancourt has presided in Ottawa on various cases in the past, she said.

Duffy was charged by the RCMP last year, and investigators say the case against him involves living- and travel-expense claims he submitted as a senator.

His lawyer elected to have the matter tried in Ontario Court.

Lawyer Andrew Furgiuele says it’s “no accident” Vaillancourt was picked for Duffy’s case, given he’s used to handling complex trial litigation.

As an example, Furgiuele pointed to Vaillancourt’s handling of the trial involving telecommunications giant Telus, a case that made it all the way to the Supreme Court of Canada in 2008.

Telus sought financial compensation for a court order requiring it to hand over records of telephone calls connected with a murder investigation being conducted by the Ontario Provincial Police — or an exemption from the order.

Telus argued the financial burden of complying with the order would be unreasonable.

In dismissing Telus’s application to the court, Vaillancourt ruled that in instances where there are production orders, judges and justices of the peace lack the statutory authority to order financial compensation to the impacted parties.

He went on to say that citizens and corporations have a civic duty to help the state uphold laws, and found Telus “certainly would have or should have been aware that the nature of its business leaves it open for production orders” or similar procedures.

He found the $662,000 yearly cost for Telus to comply with these production orders amounted to about .058 per cent of the company’s annual pre-tax earnings.

“I have found that at this particular time, the applicant has not been so inconvenienced by the current production orders as to require the court to grant an exemption from (them),” Vaillancourt ruled.

The Supreme Court upheld his decision.

A highly charged case Vaillancourt presided over involved Métis hunting rights in Ontario. A father and son were charged under the Game and Fish Act after they shot a moose in the bush near Sault Ste. Marie in October 1993.

The pair were charged with unlawfully hunting and possessing moose, but Vaillancourt dismissed the charges in 1998, ruling Métis have the right under the Constitution to hunt for food, and that the Game and Fish Act violated their aboriginal rights to do so.

The judge said that at the time that Métis had to “skulk through the forests like criminals as opposed to hunters exercising their constitutional rights.”

His ruling was ultimately upheld by the Supreme Court in 2003 in a 9-0 decision that found Métis people can claim aboriginal rights to hunt for food under the Constitution.

Last year, Vaillancourt was in the middle of another controversial case — that of a female who wears a niqab and who was the complainant during a sex-assault preliminary hearing.

The woman alleged that two men sexually assaulted her for five years while she was a child, in the mid-1980s.

The original judge in the case, who retired before Vaillancourt took over, ruled that seeing the face of a key witness is “an important feature of a fair trial” with serious implications for the accused.

After taking over the case, Vaillancourt made an accommodation for the woman, who agreed to remove the veil on condition she be allowed to avoid seeing or making eye contact with everyone in court except the judge, Crown counsel and court staff.

Vaillancourt added the accused to the list, saying they couldn’t be denied the right to see their accuser.

A courtroom was set up to enable a separate viewing room for the public, who could only see the back of the woman’s head via a camera feed.

(Crown prosecutors in the case later withdrew sexual-assault charges against the two accused, concluding there was “no reasonable prospect of conviction.”)

In response to an appeal in the case, the Supreme Court of Canada ruled in 2012 that judges can order witnesses to remove the niqab, but that must be determined on a case-by-case basis.

Vaillancourt was one of nine Toronto-area judges whose rulings were studied in a 2001 Star series, Crime and Punishment, which looked at sentencing patterns in the Ontario Court of Justice.

Included in the series was an informal poll of 50 lawyers, both Crown and defence, who worked in various courthouses around the city. The newspaper asked the lawyers to subjectively rate the rulings of the men and women on the bench on a scale from “lenient to harsh.”

Vaillancourt was rated as a “moderate.”

In an interview for the series, Vaillancourt touched on a number of topics including sentencing and the public’s opinion of judges.

On the former, he said: “If (an accused) is showing you something such as getting into a drug program, then they should get a second or even a third chance.”

On public opinion he said: “When the public is demanding stiff penalties, I always turn it around. What if they became the accused? They might look at the system a bit differently. Crying for blood is an easy thing to do, but do they really want it?”

And if the past is any indication, he won’t be intimidated when he presides over the Duffy trial.

In an earlier 1996 interview with late Toronto Star reporter Tracey Tyler, Vaillancourt recounted an incident that occurred during one of his trials, a case involving three police witnesses, two of whom according to Vaillancourt “had to be lying.”

The officers’ “whole platoon” filled the seats in the courtroom the day of the verdict, anticipating that Vaillancourt’s ruling was about to go against the Crown because of the officers’ inconsistencies.

Vaillancourt said he walked into court to see all the police officers glaring at him, “with their arms crossed.”

“That terrorized me,” Vaillancourt told the Star, adding, “but I went on to give the judgment I had prepared.”