Musings —07.21.2014 09:34 PM—
It’s a little like being charged with speeding when you’re not in a car.
Or, it’s like robbing a bank when, you know, there’s no bank. Or, say, being busted for breaking and entering, when nothing was broken into and entered.
A first-year law student understands it, and I’m certain you do, too: in order for criminal offences to be successfully prosecuted – and, presumably, the RCMP and the Crown want their high-profile prosecution of erstwhile Senator Mike Duffy for bribery to be successful – there has to be ALL of the criminal act he’s been charged with.
To wit, allegedly taking a bribe.
Now, we lawyers love Latin. We accordingly call this “act” part of a criminal offence the “actus reus.” It’s the action or the conduct part of a crime. In a bribery charge, it’s “accepts, obtains, agrees to accept or attempts to obtain, for themselves…money.”
In Latin, the mental element is called “mens rea.” It’s the requirement of having a “guilty mind.” In a bribery charge, it’s committing the act above in a “corrupt” way.
To successfully prosecute someone with a bribery charge, you need the act part, and you need the mental element part.
Now, the onetime Conservative Senator from PEI has been charged with plenty of other things, too, but it’s the bribery charge that has generated the most controversy. Here’s why: how can Mike Duffy be charged with accepting a bribe when, um, the cops aren’t also charging the person(s) who allegedly offered it?
But that’s what the Mounties and the Crown have done, here, and they look idiotic as a result. They look like they are trying to protect Prime Minister Stephen Harper, instead of enforcing the law.
It was Harper’s former Chief of Staff who, bona fide, entered into discussions with Duffy about repaying $90,000 in improper expense claims. The Chief of Staff hasn’t been charged with anything, and nor has his boss.
Why not? The “act” of bribery requires two parties. I mean, you can’t really bribe yourself, can you? It takes two to tango, bribery-style.
But here, only one party – Duffy – has been charged. Make any sense to you? Me neither.
There has been some speculation that the Prime Minister and his ex-Chief of Staff were not charged because the RCMP, in their wisdom, determined that neither man acted “corruptly.” That is, the mental element was not present.
If that’s so, can’t Duffy’s lawyer – and he’s got an Ottawa criminal defence lawyer who is legendary, believe me – argue the same thing? “Your Honour, Senator Duffy wasn’t acting corruptly! He simply was seeking help to repay the treasury. That’s not corruption, Your Honour – it’s a public service!”
Whenever police forces play politics, it ends badly – mainly for them. They stink at it. They tried to smear the Ontario Liberals mid-election campaign, and arguably helped win the Grits a majority. They blew up the Toronto Police Service’s criminal investigation of the city’s mayor, giving Rob Ford the best news he’s had in months. And so on.
In the Mike Duffy case, the RCMP and the Crown seem to have gotten together, and actually conspired to protect the Prime Minister and his staff.
They can call that whatever they want. I say it meets the “actus reus” and “mens rea” test for something else.