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On April 21, Judge Charles Vaillan- court declared Duffy not guilty on all 31 charges in an Ottawa court. It was the most dramatic acquittal for a federal politician in many years. Bayne says it is the height of hypocrisy to hold back Duffy's salary. Last week, it leaked out that a number of senators, many of them Conservatives loyal to former prime minister Stephen Harper, had plans to block Duffy from getting his hands on back pay. Parliamentary law prevents them from booting Duffy out of the Senate because he was cleared of criminal be- haviour by the judge. But fellow senators intend to prevent him from getting his back pay. They can do that with a Sen- ate vote. The Conservative Party opposition leader in the Senate, Claude Carignan, said, "I totally disagree he should get back his salary. I disapprove of it." Carignan explained that when the Senate suspended Duffy it was "a completely different situation." He did not explain what he meant, but another Conservative senator said the Senate had found evidence of "gross neg- ligence" in the administra- tion of Duffy's office and that was the reason it suspended Duffy, not because he was go- ing on trial. The issue around whether Duffy gets back his salary money centres on another Senate scandal that arose at about the same time that the RCMP closed in on Duffy. Auditor General Michael Fergu- son had been called in by the Senate to examine the expenses incurred by vari- ous senators, to establish if everything was on the up-and-up. In his report in June 2015, Ferguson found $322,611 in unjustified expenses owed the taxpayers by various senators. Ferguson sent the names of nine sena- tors to the RCMP, but none were ever charged. Ferguson cited another 21 whose ex- penses were deemed in his view "ques- tionable" but not "criminal." None lost salaries nor were suspended. Ferguson's bill to the Senate was $23.5 million. Few complained. Then the Senate did some- thing unexpected that makes Bayne rankle. It hired an ar- biter to go over the senators' expenses with them. He was a highly regarded former Su- preme Court justice, Ian Bin- nie. Bayne says bringing in Binnie to help senators was "a little process they created for themselves." They were allowed to have their lawyers present. So, who paid the law- yers? Binnie, who sat on the Supreme Court bench for 14 years until 2011, had helped the Conservative government in the past, with Harper's bid to install On- tario Federal Court judge Marc Nadon to the top court. Binnie was paid $7,463.65 to answer the question for Harper: "Is a sitting judge of the Federal Court qualified for appointment to the Supreme Court of Canada as a Quebec member" if that judge had practised law in Quebec for at least 10 years prior to becoming a judge? Binnie told Harper yes he could. But there was a guy called Rocco Galati in the picture and the whole thing ended up in the Supreme Court and Harper had to find another judge. Bayne says, "[Senators] had legal rep- resentation when they spoke to Binnie. Their legal expenses were paid by whom? Ask yourself that. Taxpayers?" Furiously, Bayne adds, "It compounds the hypocrisy. Paying themselves law- yers and not denying themselves any sal- ary. And you ask me if I think the Senate will change? Not if we keep on with that bunch!" Binnie was helpful to the senators. He was able to reduce the senators' question- able expenses down to $177,898, which is about 54 per cent of what the auditor general had said they owed taxpayers. What irks Bayne is that the sena- tors who caught themselves filing for about half a million bucks in unjusti- fied expense claims never suspended themselves, and unlike Duffy, none ever went to trial, nor were their salaries ever stopped, nor were they ever charged with anything. They simply paid back the money they should not have claimed in the first place. Actually, some are still paying back some of their unjustified claims. One of the other things that both- ers Bayne muchly is why the news media has never reported this. He thinks that with all the so-called great investigative reporters in this coun- try, somebody should have done a little more investigative work. LT uRichard Cleroux is a freelance reporter and columnist on Parlia- ment Hill. His e-mail address is richardcleroux34@gmail.com. The Hill Richard Cleroux Under pressure A recent ruling related to independent medical examinations signals tolerance by courts for biased experts may be running short. This week, Law Times reports on a personal injury case where an expert witness was rejected. In Daggitt v. Campbell, Justice Helen MacLeod-Beliveau dismissed a preliminary motion by the defend- ant insurance company for an IME of the plaintiff, Steacy Daggitt, by psychiatrist Dr. Monte Bail. Part of the approach used by Daggitt's counsel, Joseph Dart, was using the revised Rules of Civil Procedure that require expert witnesses to sign affidavits swearing impartiality. However, the judge spells out in no uncertain terms how the Rules fall short. "The recent changes to the Rules to require experts to undertake to the court to be fair, objective, and non-partisan has done little if anything to curb the use of certain favoured biased 'hired guns' by the parties. The consequences of an expert signing the undertaking and failing to hon- our their obligation in their expert report or evidence is simply the re- buke of the court. This does nothing to prevent that same expert from being further retained and repeating the process over again in other trials as long as trial counsel are willing to retain them," said the ruling. In Daggitt's case, the fast food manager had been driving near Kingston, Ont. in 2012 when she was rear-ended. Due to the crash, Daggitt has experienced chronic pain and mental health issues. Daggitt was willing to undergo an IME with a psychologist or neuropsycholo- gist, but not a psychiatrist. The ruling noted "the plaintiff has never been treated or assessed by a psychiatrist," nor had anyone recommended she see one. MacLeod-Beliveau does not mince words. "When an expert and that expert's report is nota- bly partisan, acts as judge and jury, advocates for the insurer rather than being impartial, is not credible, and fails to honour the undertaking to the court to be fair, objective, and non-partisan, it directly affects a party's right to a fair trial," said the ruling. I agree. This ruling hints major reform is not only needed but potentially gravely overdue. LT

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