07.21.2014 09:34 PM

In Tuesday’s Sun: Mike Duffy isn’t the only one who should be charged

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.

Corruption.

26 Comments

  1. Dawg says:

    Is it possible they are waiting to see what comes out of the Duffy trial before bringing any possible charges against Wright?

  2. Arnold Murphy says:

    As you say Warren, Mens rea, a guilty mind requires that the actor feel guilt. It is pure speculation on my part, but sociopaths are incapable of feeling guilt. Stephen Harper, the automaton, Mr. Roboto, a horses hind end has never been able to own up to anything nor do I believe he thinks of anything but the ends to which he uses all means to justify. Therefore, it is well within the reason that the RCMP suspect he would use all means to avoid censure or consequence. So the RCMP do what they are trained to do, much like a mountain climber does not reach up to the top of the mountain but ties off at various points along the way to secure his ascent. It is not unusual in a case to build upon a conviction or another case, to enter evidence in one prosecution, that will be used in another. When I first heard the name of the RCMP operation “Amble On” I made a quick reference check. To amble is a terminology used with horses, with which the RCMP are very familiar, a slow, deliberate pace. Herein I found the naming of the project betrayed their intent. It is slow, too slow for some, but deliberate and that is of value. No missteps, each foot placed upon the correct path and deliberately. When I say deliberate, I mean that one must have already determined the path and the destination. And as you point out, the latin is very satisfying so I will use a term that applies here “a fortiori” and in that you may be right that the RCMP acted to separate one thing from another, but I am not yet convinced it was to protect the Prime Minister. Together with the singular unequivocal separation of one actor from the plot, whom a source has had a singular comment “It was decided that it was best for him to act as a witness,” I draw a different conclusion, understanding the law as he does and the full “corpus delicti” was available, would indeed consider a submission by “ex rel” the RCMP are not so easily baited nor bought. I hope this is the case, that with time and space Nigel has chosen to become less a friend and confidant and more a free man.

  3. debs says:

    It was baffling to me to hear the pundits on P&P talking about this…as it had some merit and made sense, even Kady Omalley gave it a pass.
    Thank you Warren K for clearing up the lawyer speak, and really they had this other clown on P&P saying it was viable for the RCMP to charge duffy and give Wright a pass, to the average laymen it sounded bogus and the guy was really reaching.
    I hope a few other non corrupt politicians like Mulcair and Ms May can fight this.

    And really why is their not more public outrage over this kind of corruption …is just stunning. Lets hope the canadian public wake up.

  4. Ron says:

    I hear the trial won’t be over until October 2015 plus or minus. Could this be true ?

    Even if it is, I want to see Harper in a witness box regardless. Maybe we’ll find out
    if he can cry too.

  5. Brammer says:

    Conspiracy, or maybe the crown is using the shotgun approach – lay 31 charges and hope to convict on 10?

  6. reader says:

    Good column. Articulates well what many of us are thinking.

    I can think of one instance where the RCMP didn’t stink at politics, as in being able to have the political effect they wanted, and that was during the 2006 election.

  7. latinist says:

    @Arnold Murphy. For clarity’s sake, it’s probably better to translate ‘mens rea’ as ‘guilty intension’. The point isn’t how an actor feels so much as what his intent is.

    • Arnold Murphy says:

      I agree, he had to have an intent which would benefit himself and his party even if it was a secondary or tertiary result, which in knowing this made him culpable. That he felt something, is more of a speculation, the rational that it was for the public good is horse hockey and after the fact of a perceived crime because if he felt that Duffy’s debt needed repayment a crime had already been created and he would actively be concealing it through his actions. The only clear route he had to keep clean at that point was to inform the internal board of economy and instruct them to turn it over to the RCMP. But, there again the question arises, how many times have they covered up a crime?

  8. JH says:

    I don’t care if it’s Duffy & funerals, Mac Harb suspect expense, Pamela Wallin and where she flys from, Lavigne’s chauffeur cutting down trees, Brazeau’s idiocy or Thompson living in Mexico, it’s all about the culture of privilege amongst these people and I’ve no doubt on all sides of the H of C as well. I think the limited AG’s auditor’s report will be very enlightening and is probably why only the NDP is making the Senate an issue day in and day out in QP. What I would reallylike to see is a much more extensive AG audit over a longer period of time of both Houses. I would definitely approve the budget for it if asked or support a party that pomised it. Then and only then will Canadians get the real truth.

  9. Joe says:

    In the case of Duffy and Wright I think a more appropriate charge would have been extortion. Bribery has the hint at least of some benefit to the payer of the bribe. Duffy had nothing to offer in return. Now if someone had given Duffy some money and then received a contract from Duffy I would call that bribery. Duffy’s pay me now or I will make your life miserable threat to the PMO is more like blackmail.

  10. PVW says:

    The bribe, the $90,000, was one element of this apparent crime. That money wasn’t paid in isolation. The bribe has to be connected to corruption, to influence peddling, and we have that in spades. The objective was to secure Duffy’s cooperation in making a problem just go away. There was a deal. Duffy was to immediately shut up and cease cooperating with the Deloitte auditors appointed by the Senate to review and report on his expenses. In exchange for that, Duffy would receive three considerations – the $90,000; reimbursement of his solicitor, Janice P’s bill; and the intervention of the PMO to subvert the Senate audit committee’s investigation by laundering the report into Duffy’s expenses. Wright stepped in when the Conservative Party balked at covering Duffy’s Senate tab. Wright stepped in, not to help Duffy, but to keep “the deal” from collapsing. Wright’s intent was to facilitate every element of the deal.

    Seen in the context not of a cheque for $90K but the overall deal, the purported crime expands into a conspiracy that brings in a cast of participants including Wright, Ben Perrin, the prime minister; Senators Gerstein, LeBreton (Duffy has some interesting tape recordings of calls he got from her), Tkachuk and Stewart-Olsen; plus possibly CPC counsel Hamilton.

    The “blame Duffy” approach is founded on the narrative that he cajoled, perhaps even extorted the money put up by Wright. The notion that Wright lacked corrupt intent hangs on that. What if that wasn’t the case? What if it was Duffy who resisted “the deal” and had to be cajoled into accepting it? If there exist e-mails and correspondence between the PMO and Duffy’s then solicitor to that effect and other evidence of coercion by senior Tories, that would stand our notions of what this is all about on their head, no?

    • Joe says:

      A few flaws in your analysis PVW. Obviously Duffy was shopping which indicates extortion not bribery. Second the PM has a nasty habit of “Your ass is grass and I’m the PM”. I suspect that the PM demanded the money back, as is appropriate, and failing that was willing to let Duffy hang. The PM didn’t owe Duffy any favors and this screw up was entirely on Duffy’s shoulders. I don’t know anything about the relationship between Wright and Duffy but it is instructive that everyone else had told Duffy to go pound sand.

    • debs says:

      this was a nice analysis, and I wish the RCMP had taken a page from your book, as there is definitely alot more players as you aptly pointed out. So yes conspiracy and corruption and it leads right to PMSH. Lets hope Duffy and his lawyers are smart enough to nail them all.

    • Scotian says:

      I’d agree with what you wrote PVW, well laid out despite what your sole (so far) critic Joe appears to think. For me the idea that there is a lack of mens rea on Wright’s behalf is belied by the simple fact of the secrecy with which this transaction was taken and meant to be kept, the reasoning of you do not need to keep what you believe to be above board secret does tend to be an argument Crowns use all the time in criminal cases after all. I’ve always been fascinated by the question as to why Duffy got preferential treatment by Harper unlike the other Senators, and while Joe likes to think it was because of blackmail/extortion, I always thought it was because of how close the links between Duffy and the Harper fundraising machine and appearances with Harper between 2009-2011 to help sell him to the wider Canadian public to get that elusive majority government. Harper spent a lot of time with Duffy on the trail, so that made him especially dangerous to him in the event that he becomes separated and fending for his own survival.

      The idea that Wright lacked “corrupt intent” has made no sense to me since the argument was first made, because the whole point was to corrupt a quasi-judicial procedure the Deloitte audit set up by a Senate oversight committee, and it clear was working almost until the very end until Duffy shot his mouth off to a friend in an e-mail, it leaked, and the final whitewash failed to get the unanimous consent to put it away with (everyone forgets that it was a Liberal Senator who did so much to expose this by simply not going with the flow at the end with Tkachuk and Stewart-Olsen on that steering committee, and that was because he had heard about this e-mail), which would have killed this whole thing before it began, exactly as it was intended to do by the actions of Wright et al.

      This whole thing smells, and I am finding it harder and harder to trust the leadership of the RCMP to truly be politically non-partisan as they once were. The actions and inactions I have seen from them over the past decade now have given me, and I suspect many other Canadians real cause for concern on that point, and whether they can be trusted to do their jobs properly when it involved party politics at the highest levels, especially CPC politics at the highest level because alas it does seem that said leadership tends to be skewing more and more in that direction. I still haven’t forgotten how Zacardelli did what no prior RCMP Commissioner had done back in the 2005 election campaign, it was always the case before that even if you were investigating Parliamentarians you did not disclose that during elections because it could and would be seen as a partisan act and as such discrediting the RCMP as an arms length apolitical body which is what it is supposed to be.

      Again, nice piece PVW.

  11. domenico says:

    Nice column Warren. I too was intrigued by the “one sided” nature of the charge.

  12. Mike Adamson says:

    I read somewhere that by not laying charges against Wright, the Crown can use more evidence of the Wright/Duffy transaction in the case against Duffy. Presumably such evidence wouldn’t be available for use if both actors were charged?

  13. Matt says:

    Would the same hold true if it was Duffy who initiated the repayment scheme? Maybe he went to the party and said cover the expenses or he would do a, b, c.

    Or would that be extortion rather than bribery?

  14. domenico says:

    O Ronald I completely agree with you. Until a “gift”reaches $91,000 we should not concern ourselves with it. If one can peddle influence, pad expenses, bribe, or gift for a measly $90, 000 or less I say fill your boots.

  15. e.a.f. says:

    I read all of your article. Got the stuff about the guilty mind. thats the part though, Nigel Wright didn’t feel anymore guilty about “giving” Duffy the money, than you did giving your kids an allowance when they were 10. He most likely didn’t see anything wrong with it. He was doing what was best for the party. Now that old villien Duffy, well he’s a whole other thing. He knew he was holding the Cons feet to a fire. He wasn’t going to pay anything back and the Cons knew it, so to make things go away, they paid him to pay the government. How that gets Nigel Wright out of things though, …………

    Nigel Wright “cooperated” with the RCMP from the get go, or so we were told. That gave them the “goods” on Duffy. Duffy had to go, he was a problem for Harper and the cons. This worked. Now, as with many other things the cons have done, they don’t care too much about what happens later, i.e. they send legislation and pass it in Parliament knowing it will be overturned in the courts. this is part of the same mind set. Duffy has been shuffled off to the side. He wears most of this and they continue. Remember, the public has a short memory and the MSM is netorious for not reminding their public. We know those who “cooperate” first with the police usually get the best deal.

    it could be said, it is one thing to charge someone, thus meeting the needs of the press and public, and another to have the Crown convict. The Crown of course being another part of the government. My guess is Nigel won’t be called back to testify. Harper won’t be called, or if he is, he won’t show up. The trial will be drawn out and it will not see the inside of a court room before the next election, which may come sooner than later. They are going to make Duffy look like a very evil man by the time this is over. Just watch for “little leaks”, sort of like your kid in diappers, peeing a little at a time, but in the end, it was a puddle the kid was sitting in and you could move away–until the screaming caused you to change. There is always the hope Duffy will expire prior to a trial. Lets hope the old boy has had a chat with Stevie Cameron. I’m sure she’d love to write another, “on the take”, instead of having it be “on the take, the mulroney years, she can write, “on the take, the harper years”. I loved her first “on the take”, I can hardly wait until the next one. Actually when people started talking about harper when he came to office, I passed on my book, on the take to others and told them, this will happen again, just change the names and allow for technological changes. These people were never true Conservatives as we had once know, Progressive Conservatives, these were “all about me and how do I make money” and “extremeists” of what they call “christianity” or in my books, Canada’s version of the taliaban. (they are about as distructive)

  16. Bill From Willowdale says:

    Not a Justin fan — I think he is quite weak as a politician — but my gut feel is that this is the beginning of the end for Harper. Timing is everything. Let me say it now — JT PM.

  17. e.a.f. says:

    of course it would be good to remember B.C. and the Basi/Verk trials. Like who got charged, who didn’t, how a deal was made for $6Million and the premier of the time, el gordo, he has a nice job in London, compliments of Harper. Of course el gordo did have to take his wife………

    • debs says:

      yeah that case stunk to high heaven, and christie clarke’s ex husband was mixed up in that.
      these guys never get caught, they always work in the fall guys ahead of time. I think there is a shady character(s) whose sole job is to help politicians break rules and not get caught. “the fixer or the machevillian or some kind of label/title” the pay would be awesome, the benefits, endless.

  18. Ronald O'Dowd says:

    JH,

    Don’t waste your time. It amounts to pissing straight into the wind. I’ve done it many times over Parliamentary expenses. They positively love shitting over the Senate but regarding the Lower House — not so much.

Leave a Reply

Your email address will not be published. Required fields are marked *


*