harb affidavit

7/28/2019 Harb Affidavit

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Court file number:

BETWEEN :

ONTARIOSUPERIOR COURT OF JUSTICE

(Divisional Court)

MACHARB

Applicant

- and-SENATE OF CANADA AND ITS STANDING COMMITTEE ON INTERNALECONOMY, BUDGETS AND ADMINISTRATION AND SUBCOMMITTEE ONLIVING ALLOWANCES OF THE SENATE STANDING COMMITTEE ON

INTERNAL ECONOMY, BUDGETS AND ADMINISTRATIONRespondent

AFFIDAVIT OF MAC HARD

I, Mac Harb, of the community of La Passe, in the Township of WhitewaterRegion, in the County ofRenfrew, in the Province of Ontario, AFFIRM AS FOLLOWS:

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1. I am the applicant in this Application for Judicial Review and as such havepersonal knowledge of the matters hereinafter deposed, except where stated to bebased upon information and belief, and where so stated I do believe the same tobe true.

LOCATION OF MY PRIMARY RESIDENCE

2. I was appointed to the Canadian Senate on September 9,2003 after having been aMember of Parliament for Ottawa-Centre from November 21, 1988 to September8,2003.

3. While I was a Member of Parliament, I lived in the electoral riding of OttawaCentre in a rented apartment.

4. In 2003, I purchased a house more than 100 kilometres away from ParliamentHill, which became my home.

DESIGNATING MY PRIMARY RESIDENCE

5. According to Senate regulations, guidelines and rules, a senator can only bereimbursed for certain living and travel expenses if his or her primary residence ismore than 100 kilometres from Ottawa.

6. When I was appointed to the Senate in 2003, I was given copies of Senateguidelines and procedures relating to reimbursements for certain living and travelexpenses adopted by the Standing Committee on Internal Economy, Budgets andAdministration (the "Committee") and the Senate, namely the Senators' LivingExpenses in the National Capital Region Procedures and the Senators' LivingExpenses in the National Capital Region Guidelines, true copies of which areattached as Exhibits "A" and "B".

7. The Senators' Living Expenses in the National Capital Region Guidelines statedthe following:

Primary Residence Declaration

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In order to claim living expenses in the National Capital Region (areawithin 100 kilometres of Parliament Hill), a senator must file with theClerk, and keep up to date, a declaration designating a primary residencein the province or territory represented by the Senator.EligibiliySenators who come to Ottawa to carry out their parliamentary functions,and who are more than 100 kilometres from their registered residence, areon travel status in Ottawa and are entitled to be reimbursed for theexpenses incurred by them that are allowed under these tenns andconditions. This policy applies to senators only and to expenses incurredby a senator only.

8. The Senators' Living Expenses in the National Capital Region Proceduresspecified that:

Senators must file a declaration designating a primary residence in theprovince or territory they represent in order to claim expenses.Original receipts or certified copies must be produced for all expenses tobe reimbursed, except where receipts are expressly said nQt to be required.Claims for rented or leased accommodation must be supported by a copyof the lease agreement and cancelled cheques or receipts issued by thelandlord.Senators who own a secondary residence in the National Capital Regioncan claim $20.00 every day.

9. There existed no definition ofwhat constituted a primary residence or a secondaryresidence or criteria that a senator had to meet to designate a particular home as aprimary residence.

10. On November 18, 2003, I consulted with the Clerk of the Senate, Paul Belisle,whether I was allowed to declare my new horne as my primary residence, giventhat it was a new home and that I had previously resided in Ottawa. The Clerk ofthe Senate informed me that pursuant to the Senate guidelines, I could designatemy new home as my primary residence, as it was more than 100 kilometres fromParliament Hill.

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11. Pursuant to the existing Senate guidelines and procedures and relying on myconsultation with the Clerk of the Senate and with his approval, I designated myprimary residence as my new home. Attached as Exhibit "e" is a true copy ofmy2003 Primary Residence Declaration.

12. On February 7, 2008, I wrote to the Finance department of the Senate to inform itthat I had purchased a condominium in Ottawa, which I considered my secondaryresidence, and would be staying there when in Ottawa. Attached as Exhibit "HH"is a true copy of the letter received by the Finance department.

13. On June 17, 2010, the Committee revised the Senators' Living Expenses in theNational Capital Region Guidelines, requiring that a senator file a Declaration ofPrimary and Secondary Residences fonn on a yearly basis. Attached as Exhibit"D" is a true copy of these revised guidelines.

14. Pursuant to the revised Senators' Living Expenses in the National Capital RegionGuidelines, I signed and filed with the Clerk of the Senate a Declaration ofPrimary and Secondary Residences designating my home as my primaryresidence on October 20, 2010. Exhibit "E" is a true copy of my signedDeclaration ofPrimary and Secondary Residences form for 2010.

15. In 2011, I moved to a new home in La Passe, Ontario, which is also located morethan 100 kilometres from Parliament Hill. Pursuant to my obligation to keep theSenate administration informed of the location of my primary residence on ayearly basis, I signed and filed with the Clerk of the Senate a Declaration ofPrimary and Secondary Residences on June 3, 2011 on March 14, 2012, and onApril 30, 2013 declaring my home in La Passe as my primary residence. Attachedas Exhibit "F" are true copies of my signed Declaration of Primary andSecondary Residences for 2011, 2012 and 2013.

16. Since moving to the PembrokelFort-Coulonge area in 2003, I have alwaysconsidered it as my primary residence.

IN JUNE 2012, THE SENATE ADOPTS A DEFINITION OF A "PRIMARY RESIDENCE"

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17. On June 5, 2012, a new travel policy for senators adopted by the Senate came intoeffect ("Travel Policy"). According to chair of the Committee, Senator Tkachuk,who presented the new Travel Policy before the Senate on May 31, 2012, itspurpose was to gather all of the various guidelines relating to travel in a singledocument:

Hon. David Tkachuk: Honourable senators, this report speaks to senators'travel policy, and it is the eleventh report of the Standing Committee onInternal Economy, Budgets and Administration. We have taken thevarious guidelines that we have received from past audits and studies ofour own, and all the decisions are reflected in one travel policydocumented. The format is consistent with the Senate's policy framework,including monitoring and reporting, and the policy recognizes theimportance of providing senators with appropriate travel assistance andsets some context regarding the type of travel. Of course, we tried, as aphilosophy, to have senators responsible for their own travel points so thatthey would have less reason to come to Internal Economy and steering.We designated numbers for staff as to how many travel points one canhave for family members, dependents and one's travel companion.

Attached as Exhibit "G" is are the relevant pages of the transcript of proceedingsbefore the Senate on May 31, 2012.

18. For the first time in Senate rules, policies or guidelines, the term "primaryresidence" was defined. The Travel Policy defines a primary residence as:

"Primary residence" means the residence identified by the senator ashislher main residence and is situated in the province or territoryrepresented by the senator.Attached as Exhibit "H" is a true copy of the Travel Policy.

19 . The Travel Policy also states that:2.11 .2.1 In order to claim living expenses in the NCR, a senator must file,on an annual basis, a Declaration ofPrimary and Secondary Residence aswell as the required documentation. Senators are responsible to notifyimmediately the Finance Division of any changes in the status of theirresidences and to amend the declaration accordingly.

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20. With regards to living expenses in the National Capital Region, the Travel Policystates the following:

2.11 Senators who are more than 100 kilometres from their primaryresidence when they come to the NCR to carry out their parliamentaryfunctions are on travel status and shall be reimbursed for living expenses.The total reimbursement per fiscal year shall not exceed the maximumestablished by the Committee.

21. The Travel Policy allows for the reimbursement of accommodation expenses forcommercial, rental and also privately owned accommodation:

2.11.3 Accommodation ExpensesSenators may claim accommodation expenses in anyone of the followingthree categories: [.. .J

(c) Privately owned accommodationA senator who owns a secondary residence in the NCR may be reimbursedan allowance for private accommodation at a rate set by the Committee foreach day such residence is available for the senator's occupancy, andproviding that during such time it is not rented to another person orclaimed as an expense by another senator. Proof of ownership is definedas a municipal tax statement. Other documents will need to be reviewedby the Law Clerk's office.

22 . The Travel Policy does not define the terms "Primary Residence", "mainresidence" or "Secondary Residence".

23. The Travel Policy also specifies that I I I order to get reimbursed for livingexpenses and travel claims, it is necessary for the Senator to file the appropriatedocumentation, and that all claims will be verified:

Monitoring andReporting2.19 .1 Claims Verification2.19.1.1 All travel expense claims shall be verified by the Finance divisionprior to any reimbursement being processed. Finance verification shallinclude confirmation that all expenses claimed are in compliance with thispolicy and that mandatory documentation has been submitted.

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24. The Travel Policy also stipulates that any unusual travel claims are to be referredto the Steering Committee:

2.19.1.2 Should unusual travel activity or patterns emerge, these travelclaims shall be brought to the attention of the Steering Committee forconsideration and further verification if necessary. In such instances,finance staffmay be directed by the Committee to request from the senatordocumentation that substantiates the parliamentary nature of the travel fora more comprehensive review.25. Since my appointment at the Senate m 2003, I have transparently filed the

appropriate documentation for all of my reimbursement claims for travel andliving expenses. I have never been informed that any of my claims were everquestioned or rejected by the Committee, the Senate administration or the Clerkof the Senate.

26. As filed, my travel claims always indicate the dates that I travel between myprimary residence and Ottawa. No one ever questioned me about my travel

.patterns or the amount of time I spent at my designated primary residence.

THE AUDIT

27. In November 2012, the Senate Standing Committee on Internal Economy,Budgets and Administration ("Committee") chaired by Senator Tkachuk created aSubcommittee on Living Allowances ("Subcommittee") consisting of three

. senators, Senators Marshall, Comeau and Campbell , to investigate media reportswith respect to Senator Brazeau's living allowances in the National CapitalRegion. The Subcommittee's process and procedure are subject to the Rules a/theSenate and the Senate Administrative Rules, adopted by the Senate. Attached asExhibit "I " are the Rules a/the Senate in force since September 2012. Attached asExhibit "J " are the Senate Administrative Rules in force since June 5, 2012.

28. On December 6, 2012, nine years after my first primary residence declaration, theSubcommittee was tasked to also investigate media reports relating to my livingallowances in the National Capital Region and to determine where my primaryresidence was located.

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29. The living allowances of Senator Duffy were also investigated, but no mandatewas delegated to the Subcommittee. Rather, the Audit Subcommittee of theCommittee (the "Steering Committee"), consisting of the chair of the Committeeand two other Committee members, Senators Olsen Steward and Furey, wasresponsible for drafting the report. Attached as Exhibit "K" are the minutes of theJune 14,2011 proceedings of the Committee creating the Steering Committee.

30. The Subcommittee hired the external auditing firm Deloitte ("Independent AuditFirm") to conduct the review ofmy living expenses.

31. The Subcommittee asked the Independent Audit Firm to undertake the followingfor the period from April I, 2011.to September 30,2012:

Examination of the travel claims and supporting documentation; For claims related to travel to/from a primary residence, assess and

determine whether this occurred or could have occurred; Assess where my primary residence is located.

32. I provided the Independent Audit Firm with all of the requested information,which included the following:

Cellular telephone statements; Bank accounts history reports; Credit card statements; Access to review my personal income tax return; Personal property documentation including property tax

documents, mortgage statements, property assessments documents.33. Accompanied by my legal counsel, I met with the auditors of the Independent

Audit Firm on March 20, 2012 and answered all questions they had. My legalcounsel presented them with case law showing that Canadian courts adopt acontextual approach to determining what constitutes a primary residence.

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34. The Independent Audit Finn presented its report to the Subcommittee on May 7,2013. Attached as Exhibit "L" is a true copy of the report presented by theIndependent Audit Finn to the Subcommittee entitled "Examination of SenatorHarb's Primary and Secondary Residence Status" ("Audit Report").

THE INDEPENDENT AUDIT FIRM'S FINDINGS ON THE DEFINITION OF A PRIMARYRESIDENCE35. The Independent Audit Finn found at page 11 of its report that the Senate rules

and guidelines concerning the definition of a primary residence for the periodcovered by the audit were ambiguous:

There is a lack of clarity in the tenninology used for the differentresidences mentioned or discussed in the applicable regulations andguidelines. The following tenns are used without being clearly defined:primary residence, secondary residence, NC residence, provincialresidence. In addition, the tenn registered residence is not defined.36. The Independent Audit Firm also found at page 11 of its report that there were no

existing criteria to determine what constitutes a primary residence. It wrote thefollowing:

The regulations and guidelines applicable during the period of ourexamination do not include criteria: for determining "primary residence".As such, we are not able to assess the status of the primary residencedeclared by Senator Harb against existing regulations and guidelines.THE INDEPENDENT AUDIT FIRM'S FINDINGS WITH RESPECT TO TIME SPENT AT THEDECLARED PRIMARY RESIDENCE

The Independent Audit Firm concluded that all of the trips between my primaryresidence and my secondary residence "did take place or could have taken place"(page 20 ofExhibit "L").

37. The Independent Audit Firm's account of days spent in Ottawa and in otherlocations found that the location where I spent the greatest number of nonworking days was at my designated primary residence. The Independent AuditFirm also found that I spent more non-working days at my designated primary

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residence and other locations than in Ottawa. Here is the table ofmy location asdetermined by the Independent Audit Firm:End of Day Location of Senator Number of Days 0/0HarbOttawa - Senate Business 188 34%Other locations - Senate Business 5 1%Total Senate Business 193 35%Ottawa - activity undocumented 103 19%Ottawa - day before or after 49 9%Senate businessDeclared primary residence (plus 118 21%2 identified day trips)Other locations - activity 70 13%undocumentedUnknown 16 3%Total 549 1000/0

THE SUBCOMMITTEE'S REPORT

38. On May 8, 2013, after 5 p.m. an envelope was delivered and left on a desk in mySenate office. The envelope contained a letter from the chair of the Committee,Senator Tkachuk, stating that the Committee was meeting that same evening at6:30 p.m. to consider the report of the Subcommittee:

Following its consideration of the report prepared by Deloitte, theSubcommittee on Living Allowances will be reporting on the matter to theStanding Committee on Internal Economy, Budgets and Administration onWednesday, May 8,2013, in Room 356-S, Centre Block. at 6:30 p.m . Themeeting will continue on Thursday, May 9, 2013, in room 160-S, at 8.30a.m.39. The letter attached the report of the Independent Audit Firm, but not the report of

the Subcommittee. The letter stated that I could attend as a guest but did not inviteor call me as a witness, and stated that my legal counsel could accompany me:

You are welcome to attend the proceedings of the Internal EconomyCommittee, in particular the consideration of the report by the Committeethat concerns you. If you wish to do so, you may be accompanied by yourlegal counsel.10


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Attached as Exhibit "M" is a true copy of the May 8, 2013 letter from the chair ofthe Committee.

40. I was unaware that the Subcommittee had already considered the Audit Reportand made conclusions concerning my travel and living expenses. I had never beencontacted by the Subcommittee to respond to any of its concerns or to commenton the Audit Report. As a result, I was deprived of any opportunity to explain myposition, respond to any concerns and submit arguments in support ofmy positionbefore the Subcommittee. I was also deprived of the opportunity to suggest orrequest that witnesses be heard. The Subcommittee did not give me theopportunity to make arguments, directly or through my counsel, on contextualfactors that have been applied by the Canadian courts in determining whatconstitutes a primary residence.

41. I urgently called my legal counsel and was fortunate that he was available toaccompany me at the meeting of the Committee on such short notice.

42. I attended the meeting of the Committee with my legal counsel. Given that themeeting was held in camera and that I am not a member of the Committee, notranscript or minutes of the meeting is available to me or the public.

45. I was nevergiven the chance to read the report of the Subcommittee or to presentany evidence or submissions to respond to its conclusions.

46 . Members of the Independent Audit Firm, Mr. Gary Timm, Partner, FinancialAdvisory, Mr. Alan Stewart, Partner, Financial Advisory, and Mr. GuillaumeVadeboncoeur, Senior Management, Financial Advisory, were called as witnesses

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before the Committee. Attached as Exhibit "N" is the notice of the in camerameeting of the Committee for May 8, 2013 indicating these three individuals aswitnesses.

47. Although I was told I could ask questions to the members of the IndependentAudit Firm and the Committee, I was not capable of meaningfully participatebecause I was never given a copy of the report of the Subcommittee.

-51. Once the subject-matter of the Committee meeting no longer concerned the report

of the Subcommittee, I left the meeting.52. On May 8 or 9, 2013, the Committee accepted the report of the Subcommittee. I

am informed and believe that the report of the Subcommittee was not adoptedunanimously.

THE CONCLUSIONS OF THE COMMITTEE REpORT

53. The Committee tabled its report on my living expenses in the Senate on May 9 ,2013. Attached as Exhibit "0" is a true copy of the report of the Committee onmy living expenses, entitled "The Standing Committee on Internal Economy,Budgets and Administration Twenty-Fourth Report" ("Committee Report").

54. Contrary to the Independent Audit Firm' findings that there were no existingcriteria for determining what constitutes a primary residence, the CommitteeReport concluded that:

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the Primary and Secondary Residence Declaration fonn in force during thescope of these investigations and signed by Senator Harb is amply clear.

55. The Committee report also reiterated the Subcommittee's finding that thedefinition of a primary residence was unambiguous:

Your Subcommittee considers this language to be unambiguous and,plainly, if a Senator resides primarily in the NCR, he or she should not beclaiming living expenses for the NCR.

56. The Committee Report's final conclusion reads as follows:

It is therefore the conclusion of this Committee that, based on the evidencepresented in the examination report, Senator Harb's level of presence athis declared primary residence does not support such a declaration. It iscontrary to the meaning of the word "primary" and to the purpose andintent of the provision ofliving allowance in the NCR. My emphasis.

57. The Committee Report relied on the number of days spent at my primaryresidence, a criteria that did not exist in any Senate document, to arrive at itsconclusion without mentioning that I spent more non-working days at my primaryresidence and other locations than in Ottawa:

Deloitte's reports have been very helpful to our detennination of theappropriateness of living expense claims filed. Senator Harb was found tohave spent approximately 21 percent of 549 days at his declared primaryresidence of Westrneath, with two additional identified day trips.Additionally, Senator Harb was found to use his Ottawa address forseveral official purposes, and his travel patterns were consistently OttawaWestrneath-Ottawa, denoting that Ottawa was his default or primarylocation.

58. I gave specific explanations to the Independent Audit Finn which were notconsidered by the Subcommittee and Committee.

59. According to the Committee Report, I have to reimburse all of my livingallowances and travel claims for the period audited because the rules concerningwhat constitutes a primary residence are clear.

THE COMMITTEE'S RECOGNITION THAT THE RULES OF PRIMARY RESIDENCE WEREAMBIGUOUS

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60. Although the Committee stated in the Twenty-Fourth report that the rules andguidelines on primary residence were "amply clear" and "unambiguous", theCommittee had nevertheless already decided that criteria to determine a senator' sprimary residence needed to be adopted and that the Senate policy and guidelinesrequired clarification.

61. Indeed, on February 28, 2012, I am informed and believe that the Committeeaccepted its Nineteenth Report which recommended that the terminologysurrounding a senator's residence be standardized in the Senate's policyinstruments and that new criteria be used to determine a senator's primaryresidence. Attached as Exhibit "P" is a true copy of the Committee's NineteenthReport, which was adopted by the Senate on February 28,2012.

62. Further, in the Committee's Twenty-Second Report adopted May 9, 2013,concerning Senator Duffy's living expenses and which examined the identicalSenate rules, regulations and guidelines relating to the definition of primaryresidence the Committee had examined in the Twenty-Fourth Report, theCommittee explicitly recognized that no criteria for determining a primaryresidence existed:

Your Committee acknowledges Deloitte's finding that criteria fordetermining primary residence are lacking and this is being addressed byyour Committee.Attached as Exhibit "Q" is a true copy of the Committee's Twenty-Second Reportdated May 9,2013

63. I am informed and believe that the Committee also sought a legal opinion on thequestion of Senator Duffy's residence, but adopted the report concerning hisliving expenses before having received it. Indeed, the following exchangeoccurred in the Senate on May 28, 2013:

Hon. James S. Cowan (Leader of the Opposition): My question is forSenator Tkachuk. On February 8, 2013 you, as chair of the InternalEconomy Committee, issued a press release which included the followingsentence: As well, the Chair and Deputy Chair (Senator Furey) of thecommittee are seeking legal advice on the question of Senator Duffy's14


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residency. Who is to provide that legal advice and when is it due to bereceived?Han. David Tkachuk: We have asked the Senate staff for that legal adviceand we have yet to receive it.

64. Attached as Exhibit "R" is the transcript of the proceeding before the Senate onMay 28, 2013, and attached as Exhibit "s" is a true copy of the February 8, 2013news release from the Committee announcing that it was seeking legal advice onSenator Duffy's residence.

ATTEMPTS TO RAISE BREACH OF NATURAL JUSTICE BEFORE THE SENATE

65. On May 21, 2013, I raised a point of privilege before the Senate regarding therequirement that parliamentary process follow basic principles of natural justice,that rules cannot be changed and applied retroactively, and that doing so hasresulted in the unjust damaging of my reputation as a senator. I raised the issuethat natural justice was breached because I was not given notice of theSubcommittee report or any opportunity to respond to the Subcommittee report,and that the Committee Report was effectively a retroactive application of newlyand arbitrarily adopted criteria, and that I had sought and obtained approval fromthe Clerk of the Senate before designating my primary residence. The Speaker ofthe Senate took the question of privilege under consideration. Attached as Exhibit"T" is the transcript of my presentation of the question of privilege before theSenate on May 21,2013.

66. On May 23, 2013, without addressing the issue of the retroactive application ofnew criteria to determine what constitutes a primary residence, the Speaker of theSenate ruled that my question did not raise a question of privilege because "thereare a range of reasonable parliamentary processes available to address the issuesraised". Attached as Exhibit "U" are the relevant pages of a true copy of thetranscript of Speaker's ruling ofMay 23 , 2013.

67. On May 28, 2013, I raised a second point of privilege regarding outsideinterference in Senate internal affairs and the resulting damage to the reputation

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and integrity of the Senate. I raised the issue that the chair of the Committee,Senator Tkachuk, had sought and obtained external advice, including advice fromthe Executive, in the preparation of the report concerning Senator Duffy's livingallowances. As a result, the Committee had not acted independently. Given thatthe Committee was responsible for a similar report on my living allowances aswell, the integrity of the process relating to the preparation, drafting and adoptionof the Committee reports had been called into question and the Senate' sreputation had been negatively affected. The Speaker of the Senate took thequestion of privilege under consideration. Attached as Exhibit "R" is a true copyof the transcript of my presentation of my second question of privilege before theSenate on May 28, 2013.

68. On May 30, 2013, I rose to speak on the motion before the Senate to adopt theCommittee Report. I argued that the Committee breached natural justice because Iwas not given proper notice of the meeting where the report of the Subcommitteewould be discussed, I was not given a copy of the Subcommittee report to have itanalyzed by my counsel, and I was not given the opportunity to have my counselpresent legal argument and case law establishing that the notion of "primaryresidence" is fluid and contextual and that it is never decided exclusively on thebasis of days spent in one location. I also explained to the Senate that I hadrespected all of the rules and procedures that had been in place and that I was nowbeing subjected to a retroactive application of new criteria. Further, I remindedthe Senate that the Senate administration had verified and accepted all of myliving expenses in the past.

69. Only one other senator rose to speak on the motion.

70. As a result, there was no debate on the conclusions of the Twenty-Fourth Report,or the process by which it was prepared or adopted. The Senate did not consideror analyze whether natural justice had been breached, whether the Subcommitteeand the Committee committed an error of law by finding that the definition of aprimary residence was clear and unambiguous or by retroactively applying newcriteria.

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71. The motion to adopt the Twenty-Fourth Report was carried on division. Attachedas Exhibit "V" are the relevant pages of a true copy of the transcript of theproceedings on the motion to adopt the Committee Report before the Senate onMay 30, 2013.

72. On June 4, 2013, the Speaker again ruled that my second question did not raise aquestion of privilege because a range of parliamentary processes could be used tobring forward the concerns raised in my question of privilege. According to theSpeaker's ruling, the fact that I spoke before the Senate about the lack ofindependence of the Committee in drafting the Committee Report corrected anybreach of natural justice or procedural fairness. However, no conclusions orfindings were made with regard to my concerns raised relative to a fair hearing,the interference by the Executive, the retroactive application of new rules, and myreliance on the advice of the Clerk of the Senate. Attached as E;.;hibit "w" are therelevant pages of a true copy of the transcript ofthe proceedings before the Senateof June 4, 2013.

REQUEST OF THE SENATE TO REIMBURSE FUNDS RELATED TO MY LIVINGALLOWANCE

73. On June 3, 2013, I received a letter from the chair of the Committee, SenatorTkachuk, to request the reimbursement for living and related expenses for theperiod covered by the audit. Attached as Exhibit "X" is a true copy of the June 3,2013 letter.

74. The June 3, 2013 letter informed me that the Steering Committee had decided thatthe amount to be reimbursed for my living and related expenses should go backeight fiscal years to 2005-2006. The letter also states that:

Should you also determine that you do not wish to pay for the prior yearsat this time, your continued cooperation with an ongoing investigation issought.IMPARTIALITY AND INDEPENDENCE OF THE COMMITTEE

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75. Aside from the Twenty-Fourth Report, the Committee also adopted reportsconcerning living allowances of wo other Senators, Senator Brazeau and SenatorDuffy. Attached as Exhibits "Y" (Senator Brazeau) and "Q" (Senator Duffy) are atrue copy of the reports prepared by the Committee for Senators Brazeau andDuffy.

76. The Independent Audit Finn had also prepared an audit report for both of thosesenators, and had made the identical findings with regards to the lack of criteria todetermine what constitutes a primary residence. Attached as Exhibits "Z" and"AA" are a true copy of the audit reports prepared by the Independent Audit Firmfor Senators Brazeau and Duffy.

77. In the report on my living allowances and the report on Senator Brazeau's livingallowances, the Committee found that the criteria for determining a primaryresidence were clear and unambiguous. In fact, the Committee used the identicallanguage in both reports:

Your Committee acknowledges Deloitte's observation regarding theabsence of criteria for determining primary residence. It is nonetheless ourconclusion that the Primary and Secondary Residence Declaration form inforce during the scope of these investigations and signed by Senator Harbis amply clear, as is the purpose and intent of the guidelines (as of June2012, policy) to reimburse living expenses.. .Your Subcommitteeconsiders this language to be unambiguous and, plainly, if a Senatorresides primarily in the NCR, he or she should not be claiming livingexpenses for the NCR.

78. In its . he Twenty-Second Report concerning Senator Duffy's living allowances,the Committee came to the opposite conclusion namely that in fact, no criteria tofor determining primary residence existed:

Your Committee acknowledges Deloitte's finding that criteria fordetermining primary residence are lacking and this is being addressed byyour Committee.79. I am informed and believe that this finding had not been included in the original

report prepared by the Steering Committee of the Committee and presented to theCommittee. Attached as Exhibit "BB" is a true copy of a May 22, 2013 online

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CBC news article entitled "Mike Duff'y's primary home not P.E.I., uneditedSenate report says", which attaches a copy of the original report of the SteeringCommittee on Senator Duff'y' s living expenses. The unedited, original version ofthe report on Senator Duff'y's living expenses contained the same conclusionconcerning "clear" and "unambiguous" criteria for determining primary residenceas in the Committee Report.

80. I am informed and believe that according to the chair of the Committee, SenatorTkachuk, he and Senator Stewart Olsen, also a member of the Steering Committeeand a member of the Conservative caucus, decided to treat Senator Duffydifferently for the purposes of an audit reports. In a May 23, 2013 interview ofSenator Tkachuk published online by Maclean's, the following exchange isreported:

Question from journalist Aaron Wherry: And specifically though, thedecision not to write the report as harshly, can you say whose advice thatwas based on?Answer from Senator Tkachuk: That would have been my advice tomyself. That was Carolyn and me deciding that that's the way we shouldwrite the report.

Attached as Exhibit "CC" is a true copy of copy of the May 23 , 2013 interview ofSenator Tkachuk published online by Maclean's.

81. Indeed, Senator Furey, the third member of the Steering Committee and a memberof the Liberal caucus, confirmed in the Senate on May 28, 2013, that the chair ofthe Committee, Senator Tkachuk, used the Conservative majority to remove allnegative references to Senator Duff'y:

Senator Tkachuk: With Senator DuffY's report, we had a first draft, whichwas prepared by the clerk after general discussion. We dealt with that draftand made changes to it. Some of the changes were agreed to by SenatorFurey and some were not.We then presented the report to Internal Economy. An amendment wasmade, delivered and passed, as most reports are. This was normalprocedure with members of the opposition always in the room whenamendments were made. There was no way that changes to this reportwere made in a way that would cause any discomfort to any members19


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serving on any committee in this place. That report was tabled and passedby Internal Economy, and it is now here for debate. It was notwhitewashed. It followed a democratic process from start to finish, as thewhole process did from start to finish.Senator Furey: Senator Tkachuk:, I do not disagree that in the normalcourse reports often go through iterations. The problem with what youhave just stated is that the report came in on May 7. There were a fewtypographicals and minor changes made that the full committee agreed to.Twenty-four hours later, you used your majority in steering to delete allnegative references to Senator Duffy, including his travel pattern andamount of time spent in P E.1. versus his primary residence, which thereport at that time said was Ottawa and not P.E.I. Twenty-four hours afterthat, Mr. Robert Fife from CTV reported that $90,000 from the Chief ofStaffof the Prime Minister exchanged hands with Senator Duffy to payoffmoney that he should not have collected in the first place in the view ofthe committee. That is what makes it unusual. That is what takes it out ofthe realm of the usual.

Attached as Exhibit "R" is a true copy of the transcript of the Senate proceedingon May 28,2013.

82. I am informed and believe that, according to the chair of the Committee, SenatorTkachuk, the modifications that were made to the report on Senator Duffy wereintended to reflect the fact that he had reimbursed money that he had been givenas a living allowance. For example, an interview with Senator Tkachuk inMaclean's published on May 23, 2013 (Exhibit "CC"), includes the followingquestions and answers:Question from journalist Aaron Wherry: What about though the impression thatthe portions that were taken out of that report made it less hard on Senator Duffy?Answer from Senator Tkachuk: We didn't try to make it less hard on him. Whatwe tried to do was .. .what we did is we acknowledged the fact, in a way, that hehad paid back the money and he said he might have been mistaken. We had hopedfor an apology, but that wasn't quite there, but he did pay back the money. Andwe thought that it was a little bit different and that we should be careful with ourlanguage. His money was paid back and so we were quite happy wit t that.Question from journalist Aaron Wherry: So in a way was he given a bit of a breakin that regard because he'd paid the money back?

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Answer from Senator Tkachuk: Let's put in this way: there were tworecommendations in that report. The first one was that we keep the money. Thesecond one was that we watch, that we put a sort of a cover over his expensesover the next year and both those were unanimously accepted by steering before itwas presented to internal economy. So I don't think he was given a break. He wasgiven no break whatsoever actually. He suffered the same fate as everybody else.Was it as harshly written as the other two? No. But he had already said he wasmistaken and he had paid back the money, so we didn' t think we should harshlywrite the report as the other two.

83 . Similarly, I am informed and believe that during an interview on the CBC radioshow As It Happens on June 5, 2013, Senator Tkachuk was asked how he came tochange the working of the report, to which he answered the following:

We changed the wording of the report .. .well, in a way you could say it the otherway around. We actually increased the severity of the other two because theyhadn't paid the money back while Senator Duffy had paid the money back plusinterest. We had the cheque in the bank in March and it was deposited within theconsolidated fund and we were extremely happy about that and we're hoping wewould collect the other two. We've got letters out to them and we hope they pay itsoon.Attached as Exhibit "DD" is a true copy of the audio recording of the June 5,2013 interview with Senator Tkachuk on CBC's As It Happens. Attached asExhibit "EE" is a true copy of the transcript of that interview.

84. I am informed and believe that that in an interview in Maclean's on May 23,2013(Exhibit "CC"), the Chair of the Committee, Senator Tkachuk, was asked thefollowing question concerning Senator Duffy's report :

Can you say though that any ofthe Prime Minister's Office's advice endedup impacting how that report was written?85. Senator Tkachuk answered the following:

Well, I don't know, I suppose. It' s hard for me to say. It's hard for me tosay. Only because I asked for advice from many, many people, so it's allin the report.

86. Indeed, the chair of the Committee has admitted in the Senate that theconversations he had with the Prime Minister's Office were not restricted to the

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report on Senator Duffy, as the following exchange in the Senate on May 28,2013 (Exhibit "R") demonstrates:

Senator Cowan: Between November 20,2012 and May 9, 2013, did youor Senator Stewart Olsen have any contact with Nigel Wright or any otherofficials of the Prime Minister's Office with respect to any of SenatorsBrazeau, Duffy or Harb and the ongoing forensic audit process?Senator Tkachuk: I had general conversation during that time - maybetwice - and it was just a general conversation about the process itself. Itwas about the fact that we had a political situation on our hands, and therewas really nothing more than that. It was not complicated in any way.Senator Cowan: That was with respect to the audits of the three senatorsor with respect to the audit of one senator?Senator Tkachuk: It was about the whole process itself and the difficultythat the Senate is in.

87. I am informed and believe that Senator Duffy repaid $90,172.24 related to livingexpenses he had received since being appointed as a senator with money he hadreceived from Nigel Wright, the Prime Minister of Canada's chief of staff.Attached as Exhibit "FF" are a true copy of two news articles referring to thistransfer of money, the first entitled "Nigel Wright wrote personal cheque for$90K to repay Mike Duffy's expenses" published online on May IS, 2013 byCTV, and the second entitled "Nigel Wright, Stephen Harper's chief of staff,resigns" published online on May IS, 2013 by the Toronto Star.

88. Although the Senate has not made any finding on the location of my primaryresidence prior to April 1,2011, I am informed and believe that Senator Tkachukhas already concluded that I incorrectly designated my primary residence for theyears 2005 to 2011. Attached as Exhibit "GG" is a true copy of an online CBCNews article published on June 12, 2013, entitled "Senator Mac Harb owes$231 K in expenses" in which it is reported that Senator Tkachuk states that I mustreimburse $240,000, effectively stating that I incorrectly designated my primaryresidence for the period prior to the audit that has not yet been examined by theSenate.

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SWORN BEFORE MEat the City ofOttawain the Province ofOntarioe 14, 2013

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harb affidavit

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