Court file number:

ONTARIO SUPERIOR COURT OF JUSTICE (Divisional Court)

BETWEEN: MACHARB
Applicant

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SENATE OF CANADA AND ITS STANDING COMMITTEE ON INTERNAL ECONOMY, BUDGETS AND ADMINISTRATION AND SUBCOMMITTEE ON LIVING ALLOWANCES OF THE SENATE STANDING COMMITTEE ON INTERNAL ECONOMY, BUDGETS AND ADMINISTRATION
Respondent

AFFIDAVIT OF MAC HARD

I, Mac Harb, of the community of La Passe, in the Township of Whitewater Region, in the County of Renfrew, in the Province of Ontario, AFFIRM AS FOLLOWS:

1. I am the applicant in this Application for Judicial Review and as such have

personal knowledge of the matters hereinafter deposed, except where stated to be based upon information and belief, and where so stated I do believe the same to be true.
LOCATION OF MY PRIMARY RESIDENCE

2. I was appointed to the Canadian Senate on September 9,2003 after having been a Member of Parliament for Ottawa-Centre from November 21, 1988 to September 8,2003. 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 Parliament Hill, which became my home.
DESIGNATING MY PRIMARY RESIDENCE

5. According to Senate regulations, guidelines and rules, a senator can only be reimbursed for certain living and travel expenses if his or her primary residence is more than 100 kilometres from Ottawa. 6. When I was appointed to the Senate in 2003, I was given copies of Senate guidelines and procedures relating to reimbursements for certain living and travel expenses adopted by the Standing Committee on Internal Economy, Budgets and Administration (the "Committee") and the Senate, namely the Senators' Living Expenses in the National Capital Region Procedures and the Senators' Living Expenses in the National Capital Region Guidelines, true copies of which are attached as Exhibits "A" and "B". 7. The Senators' Living Expenses in the National Capital Region Guidelines stated the following: Primary Residence Declaration

In order to claim living expenses in the National Capital Region (area within 100 kilometres of Parliament Hill), a senator must file with the Clerk, and keep up to date, a declaration designating a primary residence in the province or territory represented by the Senator.

Eligibiliy
Senators who come to Ottawa to carry out their parliamentary functions, and who are more than 100 kilometres from their registered residence, are on travel status in Ottawa and are entitled to be reimbursed for the expenses incurred by them that are allowed under these tenns and conditions. This policy applies to senators only and to expenses incurred by a senator only. 8. The Senators' Living Expenses in the National Capital Region Procedures specified that: Senators must file a declaration designating a primary residence in the province or territory they represent in order to claim expenses. Original receipts or certified copies must be produced for all expenses to be reimbursed, except where receipts are expressly said nQt to be required. Claims for rented or leased accommodation must be supported by a copy of the lease agreement and cancelled cheques or receipts issued by the landlord. Senators who own a secondary residence in the National Capital Region can claim $20.00 every day. 9. There existed no definition of what constituted a primary residence or a secondary residence or criteria that a senator had to meet to designate a particular home as a primary residence.
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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, given
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that it was a new home and that I had previously resided in Ottawa. The Clerk of the Senate informed me that pursuant to the Senate guidelines, I could designate

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my new home as my primary residence, as it was more than 100 kilometres from Parliament Hill.

11. Pursuant to the existing Senate guidelines and procedures and relying on my consultation with the Clerk of the Senate and with his approval, I designated my primary residence as my new home. Attached as Exhibit "e" is a true copy of my
2003 Primary Residence Declaration.

12. On February 7, 2008, I wrote to the Finance department of the Senate to inform it that I had purchased a condominium in Ottawa, which I considered my secondary residence, 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 the
National Capital Region Guidelines, requiring that a senator file a Declaration of Primary 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 Region
Guidelines, I signed and filed with the Clerk of the Senate a Declaration of Primary and Secondary Residences designating my home as my primary

residence on October 20, 2010. Exhibit "E" is a true copy of my signed

Declaration ofPrimary and Secondary Residences form for 2010.

15. In 2011, I moved to a new home in La Passe, Ontario, which is also located more than 100 kilometres from Parliament Hill. Pursuant to my obligation to keep the Senate administration informed of the location of my primary residence on a yearly basis, I signed and filed with the Clerk of the Senate a Declaration of
Primary and Secondary Residences on June 3, 2011 on March 14, 2012, and on

April 30, 2013 declaring my home in La Passe as my primary residence. Attached as Exhibit "F" are true copies of my signed Declaration of Primary and
Secondary Residences for 2011, 2012 and 2013.

16. Since moving to the PembrokelFort-Coulonge area in 2003, I have always considered 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 into effect ("Travel Policy"). According to chair of the Committee, Senator Tkachuk, who presented the new Travel Policy before the Senate on May 31, 2012, its purpose was to gather all of the various guidelines relating to travel in a single document: Hon. David Tkachuk: Honourable senators, this report speaks to senators' travel policy, and it is the eleventh report of the Standing Committee on Internal Economy, Budgets and Administration. We have taken the various guidelines that we have received from past audits and studies of our own, and all the decisions are reflected in one travel policy documented. The format is consistent with the Senate's policy framework, including monitoring and reporting, and the policy recognizes the importance of providing senators with appropriate travel assistance and sets some context regarding the type of travel. Of course, we tried, as a philosophy, to have senators responsible for their own travel points so that they would have less reason to come to Internal Economy and steering. We designated numbers for staff as to how many travel points one can have for family members, dependents and one's travel companion. Attached as Exhibit "G" is are the relevant pages of the transcript of proceedings before the Senate on May 31, 2012. 18. For the first time in Senate rules, policies or guidelines, the term "primary residence" was defined. The Travel Policy defines a primary residence as:
"Primary residence" means the residence identified by the senator as hislher main residence and is situated in the province or territory represented 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 of Primary and Secondary Residence as well as the required documentation. Senators are responsible to notify immediately the Finance Division of any changes in the status of their residences and to amend the declaration accordingly.

20. With regards to living expenses in the National Capital Region, the Travel Policy states the following: 2.11 Senators who are more than 100 kilometres from their primary residence when they come to the NCR to carry out their parliamentary functions are on travel status and shall be reimbursed for living expenses. The total reimbursement per fiscal year shall not exceed the maximum established by the Committee. 21. The Travel Policy allows for the reimbursement of accommodation expenses for commercial, rental and also privately owned accommodation:
2.11.3 Accommodation Expenses

Senators may claim accommodation expenses in anyone of the following three categories: [ ... J (c) Privately owned accommodation A senator who owns a secondary residence in the NCR may be reimbursed an allowance for private accommodation at a rate set by the Committee for each day such residence is available for the senator's occupancy, and providing that during such time it is not rented to another person or claimed as an expense by another senator. Proof of ownership is defined as a municipal tax statement. Other documents will need to be reviewed by the Law Clerk's office. 22. The Travel Policy does not define the terms "Primary Residence", "main residence" or "Secondary Residence". 23. The Travel Policy also specifies that
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order to get reimbursed for living

expenses and travel claims, it is necessary for the Senator to file the appropriate documentation, and that all claims will be verified:
Monitoring and Reporting

2.19.1 Claims Verification 2.19.1.1 All travel expense claims shall be verified by the Finance division prior to any reimbursement being processed. Finance verification shall include confirmation that all expenses claimed are in compliance with this policy and that mandatory documentation has been submitted.

24. The Travel Policy also stipulates that any unusual travel claims are to be referred to the Steering Committee: 2.19.1.2 Should unusual travel activity or patterns emerge, these travel claims shall be brought to the attention of the Steering Committee for consideration and further verification if necessary. In such instances, finance staff may be directed by the Committee to request from the senator documentation that substantiates the parliamentary nature of the travel for a 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 and living expenses. I have never been informed that any of my claims were ever questioned or rejected by the Committee, the Senate administration or the Clerk of the Senate. 26. As filed, my travel claims always indicate the dates that I travel between my primary 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 a Subcommittee on Living Allowances ("Subcommittee") consisting of three . senators, Senators Marshall, Comeau and Campbell, to investigate media reports with respect to Senator Brazeau's living allowances in the National Capital Region. The Subcommittee's process and procedure are subject to the Rules a/the

Senate and the Senate Administrative Rules, adopted by the Senate. Attached as
Exhibit "I" are the Rules a/the Senate in force since September 2012. Attached as Exhibit "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, the Subcommittee was tasked to also investigate media reports relating to my living allowances in the National Capital Region and to determine where my primary residence was located. 7

29. The living allowances of Senator Duffy were also investigated, but no mandate was delegated to the Subcommittee. Rather, the Audit Subcommittee of the Committee (the "Steering Committee"), consisting of the chair of the Committee and two other Committee members, Senators Olsen Steward and Furey, was responsible for drafting the report. Attached as Exhibit "K" are the minutes of the June 14,2011 proceedings of the Committee creating the Steering Committee. 30. The Subcommittee hired the external auditing firm Deloitte ("Independent Audit Firm") to conduct the review of my living expenses. 31. The Subcommittee asked the Independent Audit Firm to undertake the following for 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 legal counsel presented them with case law showing that Canadian courts adopt a contextual approach to determining what constitutes a primary residence.

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 the Independent Audit Finn to the Subcommittee entitled "Examination of Senator Harb's Primary and Secondary Residence Status" ("Audit Report").
THE INDEPENDENT AUDIT FIRM'S FINDINGS ON THE DEFINITION OF A PRIMARY RESIDENCE

35. 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 period covered by the audit were ambiguous: There is a lack of clarity in the tenninology used for the different residences mentioned or discussed in the applicable regulations and guidelines. The following tenns are used without being clearly defined: primary residence, secondary residence, NC residence, provincial residence. 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 the following: The regulations and guidelines applicable during the period of our examination do not include criteria: for determining "primary residence". As such, we are not able to assess the status of the primary residence declared by Senator Harb against existing regulations and guidelines.
THE INDEPENDENT AUDIT FIRM'S FINDINGS WITH RESPECT TO TIME SPENT AT THE DECLARED PRIMARY RESIDENCE

The Independent Audit Firm concluded that all of the trips between my primary residence and my secondary residence "did take place or could have taken place" (page 20 of Exhibit "L"). 37. The Independent Audit Firm's account of days spent in Ottawa and in other locations found that the location where I spent the greatest number of nonworking days was at my designated primary residence. The Independent Audit Firm also found that I spent more non-working days at my designated primary 9

residence and other locations than in Ottawa. Here is the table of my location as determined by the Independent Audit Firm:

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End of Day Location of Senator Harb Ottawa - Senate Business Other locations - Senate Business Total Senate Business Ottawa - activity undocumented Ottawa - day before or after Senate business Declared primary residence (plus 2 identified day trips) Other locations - activity undocumented Unknown Total

Number of Days
188 5 193 103 49 118 70 16 549

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34% 1% 35% 19% 9% 21% 13% 3% 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 my Senate office. The envelope contained a letter from the chair of the Committee, Senator Tkachuk, stating that the Committee was meeting that same evening at 6:30 p.m. to consider the report of the Subcommittee: Following its consideration of the report prepared by Deloitte, the Subcommittee on Living Allowances will be reporting on the matter to the Standing Committee on Internal Economy, Budgets and Administration on Wednesday, May 8,2013, in Room 356-S, Centre Block. at 6:30 p.m .. The meeting will continue on Thursday, May 9, 2013, in room 160-S, at 8.30 a.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 invite or call me as a witness, and stated that my legal counsel could accompany me: You are welcome to attend the proceedings of the Internal Economy Committee, in particular the consideration of the report by the Committee that concerns you. If you wish to do so, you may be accompanied by your legal counsel.
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Attached as Exhibit "M" is a true copy of the May 8, 2013 letter from the chair of the Committee. 40. I was unaware that the Subcommittee had already considered the Audit Report and made conclusions concerning my travel and living expenses. I had never been contacted by the Subcommittee to respond to any of its concerns or to comment on the Audit Report. As a result, I was deprived of any opportunity to explain my position, respond to any concerns and submit arguments in support of my position before the Subcommittee. I was also deprived of the opportunity to suggest or request that witnesses be heard. The Subcommittee did not give me the opportunity to make arguments, directly or through my counsel, on contextual factors that have been applied by the Canadian courts in determining what constitutes a primary residence. 41. I urgently called my legal counsel and was fortunate that he was available to accompany 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 the meeting was held in camera and that I am not a member of the Committee, no transcript or minutes of the meeting is available to me or the public.

45. I was never given the chance to read the report of the Subcommittee or to present any evidence or submissions to respond to its conclusions. 46. Members of the Independent Audit Firm, Mr. Gary Timm, Partner, Financial Advisory, Mr. Alan Stewart, Partner, Financial Advisory, and Mr. Guillaume Vadeboncoeur, 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 camera meeting of the Committee for May 8, 2013 indicating these three individuals as witnesses. 47. Although I was told I could ask questions to the members of the Independent Audit Firm and the Committee, I was not capable of meaningfully participate because 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 adopted unanimously.
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 on my 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 existing criteria for determining what constitutes a primary residence, the Committee Report concluded that: 12

A the Primary and Secondary Residence Declaration fonn in force during the scope of these investigations and signed by Senator Harb is amply clear. 55. The Committee report also reiterated the Subcommittee's finding that the definition 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 be claiming 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 evidence presented in the examination report, Senator Harb's level of presence at his declared primary residence does not support such a declaration. It is contrary to the meaning of the word "primary" and to the purpose and intent of the provision ofliving allowance in the NCR. My emphasis.

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57. The Committee Report relied on the number of days spent at my primary residence, a criteria that did not exist in any Senate document, to arrive at its conclusion without mentioning that I spent more non-working days at my primary residence and other locations than in Ottawa: Deloitte's reports have been very helpful to our detennination of the appropriateness of living expense claims filed. Senator Harb was found to have spent approximately 21 percent of 549 days at his declared primary residence of Westrneath, with two additional identified day trips. Additionally, Senator Harb was found to use his Ottawa address for several official purposes, and his travel patterns were consistently OttawaWestrneath-Ottawa, denoting that Ottawa was his default or primary location. 58. I gave specific explanations to the Independent Audit Finn which were not considered by the Subcommittee and Committee. 59. According to the Committee Report, I have to reimburse all of my living allowances and travel claims for the period audited because the rules concerning what constitutes a primary residence are clear.
THE COMMITTEE'S RECOGNITION THAT THE RULES OF PRIMARY RESIDENCE WERE AMBIGUOUS

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60. Although the Committee stated in the Twenty-Fourth report that the rules and guidelines on primary residence were "amply clear" and "unambiguous", the Committee had nevertheless already decided that criteria to determine a senator' s
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primary residence needed to be adopted and that the Senate policy and guidelines required clarification. 61. Indeed, on February 28, 2012, I am informed and believe that the Committee accepted its Nineteenth Report which recommended that the terminology surrounding a senator's residence be standardized in the Senate's policy instruments and that new criteria be used to determine a senator's primary residence. Attached as Exhibit "P" is a true copy of the Committee's Nineteenth Report, 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 identical Senate rules, regulations and guidelines relating to the definition of primary residence the Committee had examined in the Twenty-Fourth Report, the Committee explicitly recognized that no criteria for determining a primary residence existed: Your Committee acknowledges Deloitte's finding that criteria for determining primary residence are lacking and this is being addressed by your Committee. Attached as Exhibit "Q" is a true copy of the Committee's Twenty-Second Report dated May 9,2013 63. I am informed and believe that the Committee also sought a legal opinion on the question of Senator Duffy's residence, but adopted the report concerning his living expenses before having received it. Indeed, the following exchange occurred in the Senate on May 28, 2013:

Hon. Jam es S. Cowan (Leader of the Opposition): My question is for Senator Tkachuk. On February 8, 2013 you, as chair of the Internal Economy Committee, issued a press release which included the following sentence: As well, the Chair and Deputy Chair (Senator Furey) of the committee are seeking legal advice on the question of Senator Duffy's
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residency. Who is to provide that legal advice and when is it due to be received?

Han. David Tkachuk: We have asked the Senate staff for that legal advice and we have yet to receive it.
64. Attached as Exhibit "R" is the transcript of the proceeding before the Senate on May 28, 2013, and attached as Exhibit

"s" is a true copy of the February 8, 2013

news release from the Committee announcing that it was seeking legal advice on Senator 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 the requirement that parliamentary process follow basic principles of natural justice, that rules cannot be changed and applied retroactively, and that doing so has resulted in the unjust damaging of my reputation as a senator. I raised the issue that natural justice was breached because I was not given notice of the Subcommittee report or any opportunity to respond to the Subcommittee report, and that the Committee Report was effectively a retroactive application of newly and arbitrarily adopted criteria, and that I had sought and obtained approval from the Clerk of the Senate before designating my primary residence. The Speaker of the Senate took the question of privilege under consideration. Attached as Exhibit "T" is the transcript of my presentation of the question of privilege before the Senate on May 21,2013. 66. On May 23, 2013, without addressing the issue of the retroactive application of new criteria to determine what constitutes a primary residence, the Speaker of the Senate ruled that my question did not raise a question of privilege because "there are a range of reasonable parliamentary processes available to address the issues raised". Attached as Exhibit "U" are the relevant pages of a true copy of the transcript of Speaker's ruling of May 23, 2013. 67. On May 28, 2013, I raised a second point of privilege regarding outside interference in Senate internal affairs and the resulting damage to the reputation 15

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 from the Executive, in the preparation of the report concerning Senator Duffy's living allowances. As a result, the Committee had not acted independently. Given that the Committee was responsible for a similar report on my living allowances as well, the integrity of the process relating to the preparation, drafting and adoption of the Committee reports had been called into question and the Senate' s reputation had been negatively affected. The Speaker of the Senate took the question of privilege under consideration. Attached as Exhibit "R" is a true copy of the transcript of my presentation of my second question of privilege before the Senate on May 28, 2013. 68. On May 30, 2013, I rose to speak on the motion before the Senate to adopt the Committee Report. I argued that the Committee breached natural justice because I was not given proper notice of the meeting where the report of the Subcommittee would be discussed, I was not given a copy of the Subcommittee report to have it analyzed by my counsel, and I was not given the opportunity to have my counsel present legal argument and case law establishing that the notion of "primary residence" is fluid and contextual and that it is never decided exclusively on the basis of days spent in one location. I also explained to the Senate that I had respected all of the rules and procedures that had been in place and that I was now being subjected to a retroactive application of new criteria. Further, I reminded the Senate that the Senate administration had verified and accepted all of my living 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 consider or analyze whether natural justice had been breached, whether the Subcommittee and the Committee committed an error of law by finding that the definition of a primary residence was clear and unambiguous or by retroactively applying new criteria. 16

71. The motion to adopt the Twenty-Fourth Report was carried on division. Attached as Exhibit "V" are the relevant pages of a true copy of the transcript of the proceedings on the motion to adopt the Committee Report before the Senate on May 30, 2013. 72. On June 4, 2013, the Speaker again ruled that my second question did not raise a question of privilege because a range of parliamentary processes could be used to bring forward the concerns raised in my question of privilege. According to the Speaker's ruling, the fact that I spoke before the Senate about the lack of independence of the Committee in drafting the Committee Report corrected any breach of natural justice or procedural fairness. However, no conclusions or findings 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 my reliance on the advice of the Clerk of the Senate. Attached as E;.;hibit "w" are the relevant pages of a true copy of the transcript ofthe proceedings before the Senate of June 4, 2013.
REQUEST OF THE SENATE TO REIMBURSE FUNDS RELATED TO MY LIVING ALLOWANCE

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73. On June 3, 2013, I received a letter from the chair of the Committee, Senator Tkachuk, to request the reimbursement for living and related expenses for the period 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 that the amount to be reimbursed for my living and related expenses should go back eight fiscal years to 2005-2006. The letter also states that: Should you also determine that you do not wish to pay for the prior years at this time, your continued cooperation with an ongoing investigation is sought.
IMPARTIALITY AND INDEPENDENCE OF THE COMMITTEE

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75. Aside from the Twenty-Fourth Report, the Committee also adopted reports concerning living allowances of two other Senators, Senator Brazeau and Senator Duffy. Attached as Exhibits "Y" (Senator Brazeau) and "Q" (Senator Duffy) are a true copy of the reports prepared by the Committee for Senators Brazeau and Duffy. 76. The Independent Audit Finn had also prepared an audit report for both of those senators, and had made the identical findings with regards to the lack of criteria to determine what constitutes a primary residence. Attached as Exhibits "Z" and "AA" are a true copy of the audit reports prepared by the Independent Audit Firm for Senators Brazeau and Duffy. 77. In the report on my living allowances and the report on Senator Brazeau's living allowances, the Committee found that the criteria for determining a primary residence were clear and unambiguous. In fact, the Committee used the identical language in both reports: Your Committee acknowledges Deloitte's observation regarding the absence of criteria for determining primary residence. It is nonetheless our conclusion that the Primary and Secondary Residence Declaration form in force during the scope of these investigations and signed by Senator Harb is amply clear, as is the purpose and intent of the guidelines (as of June 2012, policy) to reimburse living expenses ... Your Subcommittee considers this language to be unambiguous and, plainly, if a Senator resides primarily in the NCR, he or she should not be claiming living expenses for the NCR. 78. In its .the Twenty-Second Report concerning Senator Duffy's living allowances, the Committee came to the opposite conclusion namely that in fact, no criteria to for determining primary residence existed: Your Committee acknowledges Deloitte's finding that criteria for determining primary residence are lacking and this is being addressed by your 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 the Committee. Attached as Exhibit "BB" is a true copy of a May 22, 2013 online 18

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CBC news article entitled "Mike Duff'y's primary home not P.E.I., unedited Senate report says", which attaches a copy of the original report of the Steering Committee on Senator Duff'y' s living expenses. The unedited, original version of the report on Senator Duff'y's living expenses contained the same conclusion concerning "clear" and "unambiguous" criteria for determining primary residence as in the Committee Report. 80. I am informed and believe that according to the chair of the Committee, Senator Tkachuk, he and Senator Stewart Olsen, also a member of the Steering Committee and a member of the Conservative caucus, decided to treat Senator Duffy differently for the purposes of an audit reports. In a May 23, 2013 interview of Senator Tkachuk published online by Maclean 's, the following exchange is reported:
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Question from journalist Aaron Wherry: And specifically though, the decision not to write the report as harshly, can you say whose advice that was based on? Answer from Senator Tkachuk: That would have been my advice to myself. That was Carolyn and me deciding that that's the way we should write the report.
Attached as Exhibit "CC" is a true copy of copy of the May 23 , 2013 interview of Senator Tkachuk published online by Maclean's. 81. Indeed, Senator Furey, the third member of the Steering Committee and a member of the Liberal caucus, confirmed in the Senate on May 28, 2013, that the chair of the Committee, Senator Tkachuk, used the Conservative majority to remove all negative references to Senator Duff'y:

Senator Tkachuk: With Senator DuffY's report, we had a first draft, which was prepared by the clerk after general discussion. We dealt with that draft and made changes to it. Some of the changes were agreed to by Senator Furey and some were not. We then presented the report to Internal Economy. An amendment was made, delivered and passed, as most reports are. This was normal procedure with members of the opposition always in the room when amendments were made. There was no way that changes to this report were made in a way that would cause any discomfort to any members
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serving on any committee in this place. That report was tabled and passed by Internal Economy, and it is now here for debate. It was not whitewashed. It followed a democratic process from start to finish, as the whole process did from start to finish.
Senator Furey: Senator Tkachuk:, I do not disagree that in the normal course reports often go through iterations. The problem with what you have just stated is that the report came in on May 7. There were a few typographicals and minor changes made that the full committee agreed to. Twenty-four hours later, you used your majority in steering to delete all negative references to Senator Duffy, including his travel pattern and amount of time spent in P.E.1. versus his primary residence, which the report at that time said was Ottawa and not P.E.I. Twenty-four hours after that, Mr. Robert Fife from CTV reported that $90,000 from the Chief of Staff of the Prime Minister exchanged hands with Senator Duffy to payoff money that he should not have collected in the first place in the view of the committee. That is what makes it unusual. That is what takes it out of the realm of the usual.

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Attached as Exhibit "R" is a true copy of the transcript of the Senate proceeding on May 28,2013. 82. I am informed and believe that, according to the chair of the Committee, Senator Tkachuk, the modifications that were made to the report on Senator Duffy were intended to reflect the fact that he had reimbursed money that he had been given as a living allowance. For example, an interview with Senator Tkachuk in Maclean's published on May 23, 2013 (Exhibit "CC"), includes the following questions and answers:
Question from journalist Aaron Wherry: What about though the impression that the 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. What we tried to do was ... what we did is we acknowledged the fact, in a way, that he had paid back the money and he said he might have been mistaken. We had hoped for an apology, but that wasn't quite there, but he did pay back the money. And we thought that it was a little bit different and that we should be careful with our language. His money was paid back and so we were quite happy witt that.
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Question from journalist Aaron Wherry: So in a way was he given a bit of a break in 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 two recommendations in that report. The first one was that we keep the money. The second one was that we watch, that we put a sort of a cover over his expenses over the next year and both those were unanimously accepted by steering before it was presented to internal economy. So I don't think he was given a break. He was given 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 was mistaken and he had paid back the money, so we didn' t think we should harshly write the report as the other two .
83 . Similarly, I am informed and believe that during an interview on the CBC radio show As It Happens on June 5, 2013, Senator Tkachuk was asked how he came to change 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 other way around. We actually increased the severity of the other two because they hadn't paid the money back while Senator Duffy had paid the money back plus interest. We had the cheque in the bank in March and it was deposited within the consolidated fund and we were extremely happy about that and we're hoping we would collect the other two. We've got letters out to them and we hope they pay it soon. 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 as Exhibit "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 the following question concerning Senator Duffy's report: Can you say though that any ofthe Prime Minister's Office's advice ended up 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 to say. Only because I asked for advice from many, many people, so it's all in the report. 86. Indeed, the chair of the Committee has admitted in the Senate that the conversations he had with the Prime Minister's Office were not restricted to the 21

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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 you or Senator Stewart Olsen have any contact with Nigel Wright or any other officials of the Prime Minister's Office with respect to any of Senators Brazeau, Duffy or Harb and the ongoing forensic audit process? Senator Tkachuk: I had general conversation during that time - maybe twice - and it was just a general conversation about the process itself. It was about the fact that we had a political situation on our hands, and there was really nothing more than that. It was not complicated in any way. Senator Cowan: That was with respect to the audits of the three senators or with respect to the audit of one senator? Senator Tkachuk: It was about the whole process itself and the difficulty that the Senate is in. 87. I am informed and believe that Senator Duffy repaid $90,172.24 related to living expenses he had received since being appointed as a senator with money he had received 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 this transfer of money, the first entitled "Nigel Wright wrote personal cheque for $90K to repay Mike Duffy's expenses" published online on May IS, 2013 by CTV, 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 primary residence prior to April 1,2011, I am informed and believe that Senator Tkachuk has already concluded that I incorrectly designated my primary residence for the years 2005 to 2011. Attached as Exhibit "GG" is a true copy of an online CBC News 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 must reimburse $240,000, effectively stating that I incorrectly designated my primary residence for the period prior to the audit that has not yet been examined by the Senate.

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SWORN BEFORE ME at the City of Ottawa in the Province of Ontario e 14, 2013

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