While the Mike Duffy trial has focused heavily on the political implications, at least one legal observer feels the legal issues have languished and suggests the proceedings so far don’t speak particularly well of the criminal justice system.
“I feel the trial has focused more on some of the political issues than on whether he’s guilty or not of particular offences,” says University of Alberta Faculty of Law Prof. Peter Sankoff of the proceedings involving the suspended senator.
The defence and the Crown, says Sankoff, appear to be putting a wide range of issues before the court, something he suggests raises concerns about the criminal justice system’s ability to resolve disputes in an efficient way. “I’m concerned about that because I don’t think it’s good for anybody,” he says, adding that the confusion about where the trial is going is in large part due to the wording of the Criminal Code.
“I think a large part of this comes from the Criminal Code. The Criminal Code is not well written,” he says.
In fact, Sankoff has written a paper recently examining the trial so far and the Crown’s likelihood of success on the particular charges, especially in relation to the $90,000 cheque Nigel Wright, the prime minister’s former chief of staff, wrote to Duffy to reimburse him for paying back his residency expense claims. “On the cheque charges, I remain skeptical,” says Sankoff, who in his paper examines the three charges — bribery under s. 119, fraud on the government under s. 121(1)(c), and breach of trust under s. 122 — in detail. The issues under s. 121, he says, are the most straightforward to analyze given its reference to officials who demand or accept a reward or advantage from a person “who has dealings with the government.”
“Since the day these charges were initiated, I’ve been mystified about exactly how the Crown intends to prove that s. 121 was contravened,” Sankoff wrote in his paper this month.
“Nigel Wright may have been many things, but how the Crown will show that he had ‘(business) dealings with the government’ is completely beyond me,” he added, noting Wright was in fact part of the government rather than someone outside of it.
On the bribery charge, Sankoff noted the provision in s. 119 that refers to taking money “in respect of anything done or omitted or to be done or omitted by them in their official capacity.” In his paper, he cast doubt on how that would apply to Duffy’s acceptance of the $90,000 cheque. “The term ‘in respect of anything done or omitted or to be done or omitted by them in their official capacity’ has traditionally applied to ‘official’ acts of governance or the exercise of influence by a government official. Indeed, every bribery case in Canadian history is recognizable by the payment of money (or other reward), followed by the government official performing (or omitting to perform) an act within that actor’s range of power designed to benefit the giver (or related party). The Duffy case, on the evidence we’ve seen so far, looks nothing like this.”
Ottawa defence lawyer Michael Spratt also has his doubts about some aspects of the Crown’s case, particularly around s. 121 of the Criminal Code and the language around business dealings with the government. But while he feels Duffy has some defences on the bribery charge, he also thinks he may be vulnerable given that he received money to do or not do something, in this case to have him repay the housing money and deliver scripted media lines about it.
Spratt also doubts Duffy would have much success in arguing that he acted under duress in taking the money despite the testimony from key staff members in the prime minister’s office about the political imperative of resolving the issue through the repayment scheme they came up with. “Mr. Duffy was involved with negotiating,” he says, referring to the weeks of discussions between Duffy’s lawyer and the prime minister’s office about the repayment. “He may have felt that he did not have a choice, but, of course, he did have a choice.”
When it comes to the strategy employed by Duffy’s lawyer, Donald Bayne, Spratt suggests the senator’s earlier statements in the Senate about how the cheque was an outrageous scheme cooked up by the prime minister’s office essentially forced him into following that line of reasoning in the trial. “That’s the road the defence has to go down,” he says, suggesting that while there may be disadvantages to that, Bayne has nevertheless done an effective job of showing the absurdity of some of the Crown’s evidence.
For his part, Sankoff says Bayne may simply be trying to be as thorough as possible and suggests his approach may be about trying to preserve a line of defence on the separate fraud charges Duffy is facing in relation to his expense claims by showing that, rather than his client having been an active player, it was the prime minister’s office that was in control of what was happening.
Of course, the key question all along has been why police didn’t charge Wright with offering the alleged bribe, especially given the more recent testimony that revealed the extent to which the prime minister’s office orchestrated the arrangement. In his paper, Sankoff suggested it likely has to do with “how legally suspect the charges are.”
“That’s the only conclusion I can come to,” he says, casting doubt on the theory that police and the Crown wanted to keep him co-operative as a witness given that they would have had other options on that front.
Spratt, however, feels the many other people involved in negotiating with Duffy should feel lucky they’re not facing charges themselves. “If there are grounds to charge Duffy, there are grounds to charge everyone else involved as well,” he says.
Besides the criminal aspects of the proceedings so far, the case has also raised questions about another legal issue: the role of the prime minister’s former in-house counsel, Benjamin Perrin. It’s an issue Prof. Adam Dodek wrote about last week and one another law professor at the University of Ottawa, Penny Collenette, also has questions about. “No one can remember any PMO having a personal lawyer before,” says Collenette, who worked in former prime minister Jean Chrétien’s office as director of appointments during the 1990s.
“This is a brand-new position,” she adds, questioning the need for such a position and echoing Dodek’s concern about the prime minister’s use of an in-house lawyer rather than going to the Department of Justice for advice.
Collenette also question’s Perrin’s involvement in the Duffy issue given that it ultimately boiled down to a political issue for the Conservative party. “This was clearly a party matter, so why wasn’t Arthur Hamilton involved?” she asks, referencing the lawyer for the Conservative party.
In terms of Perrin’s testimony, Collenette is full of praise for his performance on the witness stand. “He came off as credible, I think, because of all the details,” she says, citing his recollections about fellow staffer Ray Novak’s awareness of Wright’s payment to Duffy.
“Somebody in there is not telling the truth,” she says of the conflicting testimony this month.
The trial, of course, is on hold for the moment. But with lawyers like Spratt certain that Duffy will be testifying at some point and with a separate trial against Bruce Carson, a former aide to the prime minister, set to start this month on charges of influence peddling and improper lobbying, it’s clear that the courts will continue to play host to plenty of political theatre.