Bar is high for prosecutors in proving Duffy bribery charge: experts

The Canadian Press
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Mike Duffy stands with family outside a Kensington dog kennel on Friday July 18, 2014. The bribery provision used to criminally charge Sen. Mike Duffy carries a high threshold of proof because prosecutors will have to show he intended to behave corruptly, legal experts say.

The bribery provision used to criminally charge Sen. Mike Duffy carries a high threshold of proof because prosecutors will have to show he intended to behave in a corrupt manner, legal experts say.

The formidable bar might also help explain why the other party in the transaction — Nigel Wright, the prime minister’s former chief of staff — does not face a bribery charge.

The RCMP have laid 31 charges of fraud, breach of trust and bribery against Duffy. Many of them are connected to expense claims for housing and travel.

In Prince Edward Island, Duffy said Friday it would be inappropriate to comment because the matter is now before the courts.

“The court process will allow Canadians to hear all of the facts. They will then understand that I have not violated the Criminal Code,” he said.

Duffy’s first court appearance is set for Sept. 16.

The bribery charge, which carries a maximum sentence of 14 years, relates to a $90,000 payment Duffy received from Wright to help cover expenses.

The RCMP said in April that Wright would not be charged.

Wright said at the time he intended to secure the repayment of taxpayer funds, and that he believed his actions were lawful and in the public interest.

Section 119 of the Criminal Code makes it an offence for a member of Parliament to “corruptly” accept money “in respect of anything done or omitted or to be done” in their official capacity.

Such cases are rare and the outcome of Duffy’s bribery charge could turn could depend on how the courts interpret the wording, indicated Don Stuart, a law professor at Queen’s University in Kingston, Ont.

“It seems unclear what the courts have made of the word corruption. Normally speaking you don’t have to prove a motive, but in this case you might have to, because of the use of the word corruption,” he said.

“They will have to prove beyond a reasonable doubt that his intention was a corrupt intention.”

The lofty level of proof is due to the gravity of the offence — underscored by the stiff maximum penalty, said law professor Carissima Mathen of the University of Ottawa.

The word “corruptly” suggests an act done for a particular purpose, she said. “It’s blameworthy, it’s especially wrong what you’ve done.”

Assuming that the RCMP is operating in good faith, this hurdle is the likely explanation for why Wright was not charged with bribery, Mathen said.

“We can find aspects of Wright’s conduct problematic, troubling, even wrong — and it doesn’t mean that in law the RCMP felt that there was enough evidence to present a reasonable chance of conviction,” she said.

“In a legal sense, it is possible that the evidence was not there to show that Nigel Wright had the state of mind required for this crime. This is a serious crime.”

The RCMP dropped some hints in previous court filings concerning why Wright might not be charged.

They noted that Wright had paid for tens of thousands of government business expenses out of his own pocket, in keeping with his personal philosophy. There was also reference to thousands of dollars in legal work he had done on his own dime.

For the RCMP, it might have reinforced the notion of no corrupt intent on Wright’s part.

RCMP Commissioner Bob Paulson has said the Mounties have prepared an explanation as to why Wright was not charged, but how or when it will be made public is not clear.

Organizations: RCMP, University in Kingston, University of Ottawa.The

Geographic location: Prince Edward Island, Queen

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Recent comments

  • Island Boy
    July 20, 2014 - 17:39

    Duffy, do the right and proper thing... RESIGN! You are making the Island a laughing stock; you are a dreadful example to Islanders and their children and you have run out of excuses and reasons...so, RESIGN!

  • voter
    July 20, 2014 - 17:08

    LAWS ARE CROOKED -no wonder people think lawyers are too ---a special set of laws for the poltically connected--a person with no money and no political connections would be in prison now - -

  • John G
    July 20, 2014 - 07:37

    Why would the system find Mike Duffy guilty of anything. Tony Clemet isn't in prison and he redirected nearly 50 million G8 security dollars to infrastructure in his own riding with no paper trail or receipts. But the G8 summit wasn't held there.

  • Laura Ingalls Wilder
    July 19, 2014 - 17:35

    Besides the obvious that both Harper choices Nigel Wright and Mike Duffy are crooked it begs the question. If Harper knew Duffy and all the other senators he appointed for his personal political reasons didn't live in the province they represented but tell me this. How else were they supposed to play Harpers game? Claim expenses in the province they actually lived in? How does that work? They basically had no choice but to put in claims because they had to keep the appearances up that they lived where they were supposed to. Duffy should have at least had the lane blown out once in a while could probably have claimed that anyway. Harper forced all these senators and Wright to scheme and fraud there way through each and everyday and he should be right there with the whole useless bunch, fired! Although these group of Harper appointees are useless the senate as it exists in law is a good thing and we need to keep it populated with better people.

    • And What
      July 20, 2014 - 08:56

      And what ??? appoint liberals since they have shown they are so honest in the past ha,ha,ha Get your head out of the sand & use it for what the lord gave it to you for . Common sense thinking , not brown nosing . Yes , Duffy & a lot more have been ripping us taxpayers off , it is wrong now as it has been in the past but never pointed out by our good honest Liberals since it was them doing it . Take the time & look back with a open mind ,. I think you will find it interesting .

    • Garth Staples
      July 20, 2014 - 11:16

      And who appointed Sen Harb who had to pay back 235,0000$ and charges may be laid? Who appointed the current mayor of London to the Fed Cabinet and who was convicted of defrauding the taxpayers? Who you ask? It was Liberal PM Chretien the darling of all liberals who was PM when the adscam took place. Be fair.

  • DO we need these characters inthe senate?
    July 19, 2014 - 12:21

    Can someone actually show me what any of these senators have done for PEI???they are not elected ,have large salaries and an executive pension plan....they make the odd objection to current GOvt policy,they assist the sitting MP's of the same party for political resasons....used to go to caucaus......really what have they done of importance..??except window dressing.If they do comment who listens to them??why should we?? It is just this big pile of former political both front and back door players on all sides.....they are there because the party they supported elevetated them there as some sort of reward ..for what?? Hundreds of millions goes into salaries ,pensions,security,..and they really do nothing but HELP themselves.

  • lots of willfull blindness on all sides
    July 19, 2014 - 12:09

    Several senators from all parties represent areas they do not live in...BUT they do not claim residency there for compensation reasons..the Govt expects them to be honourable.The DUFFER has been a BS 'er all his life and felt he could pull off this gravey train, no luck ,as well as the other 3.....lots of BS makes a good point in the scenario......will HARPER survive...he as survived worse than this......The Liberals still have HARVE and the NDP ..well they don't count anyway..they just want to get there hands into the Govt coffers so they can clean it out....like the other 2 do and have done....ho hum this will be forgotten in 10 months..Also did you think PERCY DOWNE did not know this was happening???You have to have willfull blindness..or the old saying don't rock the boat..I got it to good...Never heard GARNEAU mention that or even TRUDEAU either...um wonder why?

  • WTF
    July 18, 2014 - 23:31

    The formidable bar Nigel Wright had to face was attorney general Peter Mackay ... how the Duff will fair out is either with a payout behind closed doors or a trial, the latter of which I hope all Canadians will benefit from ...the end of the Harper Government .

  • lots of BS going NO swhere
    July 18, 2014 - 21:24

    Bribery or no bribery with 31 charges at least 5 or 6 will stick...either thru trial or plea bargain......there was outright fraud by claiming Cavendish was his primary residence for starters.....as far as him going on the stand total BS ,,he will plea bargain.. no defence lawyer would leave him open for examination by a crown lawyer....it would then be 10-12 convictions.. .besides the Liberals still have HARVE to defend and will feel the backlasah froim that...........Harper will survive this tempest ina teapot,regardless what the naysayers say....

    • John Hamilton
      July 18, 2014 - 23:41

      ``......there was outright fraud by claiming Cavendish was his primary residence for starters``, gee ya don`t say. Of course you mean fraud by Harper because he knew Mr. Duffy lives in Ontario when he hired him not to represent Islanders but to exploit his media and political capital.