ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — MICHAEL DENNIS DUFFY Before Justice Charles H. Vaillancourt Heard on April 7-10, 13- 17, 20-24, 27-29, May 4-8, June 1-5, 8-12, 15-17, August 12-14, 17-21, 24-25, November 19-20, 23, 25, 27, 30, December 7-11, 14-18, 2015 and February 22-23, 2016 Reasons for Judgment released on April 21, 2016 Mark Holmes and Jason Neubauer ................................................................... counsel for the Crown Donald Bayne and Jon Doody ..................................... counsel for the accused Michael Dennis Duffy VAILLANCOURT J.: [1] Michael Dennis Duffy entered pleas of not guilty to thirty-one criminal charges re- lated to breach of trust allegations, fraudulent practices, and accepting a bribe. For the sake of expediency, the counts have been grouped into the various headings and I propose to deal with each specific category separately. [2] Prior to embarking on a count by count analysis of this case, it is worthwhile to harken back to some basic principles that are at play in all criminal proceedings. PRESUMPTION OF INNOCENCE [3] I would like to relate an interesting encounter that I experienced near the com- mencement of this trial that demonstrates the difference between the legal presumption of innocence and the application of that presumption by many citizens. [4] I was returning to the courthouse after a lunch break when I heard a man who was — 2 — soliciting funds from passersby say, “Sir, sir.” I stopped and began to check out my mone- tary situation. However, the stranger did not ask me for a financial contribution. Instead, he asked me if I was connected with the Duffy trial. I advised him that I was. He then inquired whether I was counsel. I advised him that I was not but I did tell him that I was the judge hearing the case. Without missing a beat, my new found friend enthusiastically stated, “Throw him in jail.” [5] The aforementioned exchange highlights two important aspects of Senator Duffy’s trial. [6] Firstly, the scenario illustrates the public awareness and interest in these proceed- ings. [7] Secondly and more importantly, the exchange draws attention to the overarching touchstone principle of criminal law in Canada, namely, that everyone is presumed innocent until the Crown proves them guilty beyond a reasonable doubt. Although, the stranger drew my attention to the principle, his enthusiastic response highlighted a contrary position to the presumption of innocence. I think it is fair to say that many people may share the belief that once someone is charged with a criminal offence they are guilty. This is not the law of the land. [8] Chief Justice Dickson of the Supreme Court of Canada in R. v. Oakes, [1986] 1 S.C.R. 103, [1986] S.C. J. No. 7 wrote about the presumption of innocence and s. 11(d) of the Charter commencing at paragraph 27: [27] Section 11(d) of the Charter constitutionally entrenches the presumption of in- nocence as part of the supreme law of Canada. For ease of reference, I set out the provision again: 11. Any person charged with an offence has the right … (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. [28] To interpret the meaning of s. 11(d), it is important to adopt a purposive ap- proach. As this Court has stated in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344: The meaning of a right or freedom guaranteed by the Charter was to be ascer- tained by an analysis of the purpose of such a guarantee; it was to be under- stood, in other words, in the light of the interests it was meant to protect. In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger — 3 — objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and free- doms …. To identify the underlying purpose of the Charter right in question, therefore, it is important to begin by understanding the cardinal values it embodies. [29] The principle of innocence is a hallowed principle lying at the very heart of crim- inal law. Although protected expressly in s. 11(d) of the Charter, the presumption of innocence is referable and integral to the general protection of life, liberty and securi- ty of the person contained in s. 7 of the Charter (see Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, per Lamer J.) The presumption of innocence protects the fun- damental liberty and human dignity of any and every person accused by the State of criminal conduct. An individual charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community, as well as other and social, psycho- logical and economic harms. In light of the gravity of the consequences, the presump- tion of innocence is crucial. It ensures that until the State proves an accused’s guilt beyond all reasonable doubt, he or she is innocent. This is essential in a society com- mitted to fairness and social justice. The presumption of innocence confirms our faith in humankind; it reflects our belief that individuals are decent and law-abiding mem- bers of the community until proven otherwise. [30] The presumption of innocence has enjoyed longstanding recognition at common law. In the leading case, Woolmington v. Director of Public Prosecutions, [1935] A.C. 462 (H.L.), Viscount Sankey wrote at pp. 481-482: Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject al- so to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prose- cution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. Subsequent Canadian cases have cited the Woolmington principle with approval (see, for example, Manchuk v. The King, [1938] S.C.R. 341, at p. 349; R. v. City of Sault Ste Marie, [1978] 2 S.C.R. 1299, at p. 1316). PRINCIPLES RELATING TO THE ISSUE OF REASONABLE DOUBT, BURDEN OF PROOF AND CREDIBILITY — 4 — [9] In R. v. Lifchus, [1997] 3 S.C.R. 320, Cory J. at paragraph 27 observed that: First, it must be made clear to the jury that the standard of proof beyond a reasonable doubt is vitally important since it is inextricably linked to that basic premise which is fundamental to all criminal trials: the presumption of innocence. The two concepts are forever as closely linked as Romeo and Juliet or Oberon with Titania and they must be presented together as a unit. If the presumption of innocence is the golden thread of criminal justice then proof beyond a reasonable doubt is the silver and these two threads are forever intertwined in the fabric of criminal law. Jurors must be re- minded that the burden of proving beyond a reasonable doubt that the accused com- mitted the crime rests with the prosecution throughout the trial and never shifts to the accused. [10] In R. v. W.(D.), [1991] 1 S.C.R. 742, at paragraphs 27 and 28, the Court noted that: [27] In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as a whole. See R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.), approved in R. v. Morin, [1988] 2 S.C.R. 345 at p. 357. [28] Ideally, the appropriate instructions on the issue of credibility should be given, not only during the main charge, but on the recharge. A trial judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but are left in reasona- ble doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence by the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.