Of the 31 criminal charges suspended Sen. Mike Duffy is facing in relation to his expense claims, the two that have received the most public attention are among the most rarely prosecuted sections in the Criminal Code.
The most relevant case law in defining the elements of the offences of bribery of a judicial officer and fraud on the government go back at least two decades. And the precedents may not provide a legal answer to why the RCMP charged Duffy with those offences but not Nigel Wright over the personal $90,000 payment to the senator for him to reimburse residency expense claims.
“The RCMP probably made an executive call,” says Enzo Rondinelli, a Toronto defence lawyer and adjunct professor at Osgoode Hall Law School.
“It is very hard to prove the mens rea aspect, so if you charge both people, it is difficult to pierce the veil and show intent,” he says.
By charging only Duffy, the Crown can call Wright as its main witness, although “he will clearly be cross-examined to the hilt,” he adds.
Wright, who was chief of staff to Prime Minister Stephen Harper at the time of the payment, recently returned to a senior position with Onex Corp. The suggestion that he should face criminal proceedings arose in a written statement issued by Duffy’s lawyer, Donald Bayne, on the eve of the announcement of charges against his client on July 17.
“I am sure I am not the only Canadian who will wonder openly, how what was not a crime or bribe when Nigel Wright paid it on his own initiative, became however mysteriously, a crime or bribe when received by Senator Duffy,” said the statement from Bayne, a partner at Bayne Sellar Boxall in Ottawa.
Wright has been told to expect to be called as a witness at the Duffy trial, but that’s all. “There was no agreement with the Crown or RCMP,” says his lawyer, Peter Mantas, a partner at Fasken Martineau DuMoulin LLP in Ottawa.
The bribery section states it’s an offence for any holder of a judicial office or a member of Parliament or a provincial legislature to “corruptly” accept or obtain, among other things, money or valuable consideration “in respect of anything done or omitted to be done,” in an official capacity. It’s also an offence to give or offer money corruptly to a holder of a judicial office as well as member of Parliament or a provincial legislature.
The Supreme Court of Canada defined the term “corruptly” in a 1992 ruling dealing with a secret commission prosecution. Secrecy is the “corrupting element of the offence,” wrote justice Peter Cory for the majority in R. v. Kelly. “It is the non-disclosure which makes the receipt of the commission or reward corrupt.”
Peter Sankoff, a criminal law professor at the University of Alberta, says it’s “not a very high bar” for the Crown to prove that element based on the facts released so far about the $90,000 payment. But in this section, Sankoff says there has to be some quid pro quo aspect in order to prove culpability. “He has to do something. I think this will turn on the ‘in respect of anything done or omitted to be done’” portion of the section, he adds.
The RCMP originally alleged there was a mutual consideration in an information to obtain production orders unsealed last fall. Cpl. Greg Horton swore he had “reasonable grounds to believe” both Duffy and Wright had committed the offences of bribery and fraud on the government as well as breach of trust.
The 81-page information to obtain detailed various e-mail correspondence between Wright and senior Conservatives as well as Duffy and his lawyer. Duffy, through his lawyer, allegedly set a list of conditions for repaying the money that included Conservative talking points aimed at publicly downplaying any wrongdoing.
Wright, who met with the RCMP along with his lawyers, indicated he had agreed to pay the money personally to Duffy, according to the information to obtain. The senator was to immediately repay his expense claims and stop talking to the media.
When it comes to the charge of fraud on the government, Sankoff isn’t certain either Duffy or Wright meet the definition of whom the section captures because it requires the giver or receiver of the benefit to be someone who has “dealings with the government.”
“It means someone who has business dealings or business relations,” says Sankoff, referring to the majority decision of the Supreme Court in R. v. Hinchey.
“The Crown will have to make a case that someone who works for the government has business dealings with the government,” he adds.