Duffy’s acquittal is good news for other senators’ cases
OTTAWA— The lawyer who won a complete acquittal for Mike Duffy says the Ontario court ruling should put a quick end to prosecutions of two other senators whose cases are before the courts, and halt any other charges in Senate cases still under review, including Sen. Pam Wallin’s.
Duffy is still not accepting interview requests, though he is free to speak for himself once again after Judge Charles Vaillancourt on Thursday tossed out all 31 criminal fraud, breach of trust and bribery charges against the senator.
“I do not believe that they’ll proceed with charges on Wallin or on any of the other senators,” lawyer Don Bayne in an interview Friday. The RCMP has charged former Conservative Sen. Patrick Brazeau and retired Liberal senator Mac Harb with fraud and breach of trust charges related to expense claims for primary residences. Harb’s trial was due to start in August, Brazeau’s in June 2017.
“I hope whoever’s in charge of those two cases will have a serious second look at them,” said Bayne.
But Bayne believes it is not the end of the line for the 69-year-old Duffy.
He says Duffy “sure has a strong case” for a claim against the Senate to pay back wages lost during the time the Senate voted to suspend him without pay, rejecting Duffy’s right to be presumed innocent.
Duffy was suspended from the fall of 2013 to August 2015 when Parliament dissolved for the federal elec- tion, though he had argued vehemently from the get-go that he would be cleared.
Duffy’s right to a presumption of innocence featured throughout the 308-page judge’s ruling. It found the Crown failed to prove beyond a reasonable doubt that Duffy knowingly broke any criminal law.
Bayne said while a lower-court ruling carries persuasive but not binding weight, it nevertheless “has a practical impact.”
After an exhaustive review, the judge said most of the errors made by Duffy were not much more than administrative missteps that “were not matters for a criminal court, they were matters for Senate finance or the Board of Internal Economy,” said Bayne.
Vaillancourt made “powerful” findings of fact about the rules, saying Senate rules did govern Duffy’s conduct, but they were broad, and in most cases Duffy fell within them, such as travel for partisan activity, and that matters, said Bayne. For the Crown and the RCMP, he said, the Duffy trial “was kind of their test case.”
“I think they’ll conclude it did not go well.”
“These are expensive prosecutions; they’ll now have to ask is it really in the public interest, given what the judge said, to proceed” on other cases, Bayne added. The RCMP and Ottawa Crown office have said privately throughout the Duffy trial that the fact situations are very different in all three, and that the outcome of the Duffy trial would not determine whether the Harb and Brazeau trials went ahead.
Wallin is still under RCMP investigation for travel claims that RCMP allege were wrongly made, according to affidavits in support of production orders authorized by a court. In her case, the Mounties have been investigating for more than three years without laying charges, leaving a cloud of suspicion hanging over her head. Crown attorneys Mark Holmes and Jason Neubauer and the RCMP’s lead investigator on the Duffy case, Sgt. Greg Horton, did not comment Friday.
What’s harder to say — after the wholesale thrashing that the Duffy trial judge delivered to the prosecution case and Stephen Harper’s Prime Minister’s Office — is whether Duffy has any grounds to go to court to sue for damages for the ordeal.
Bayne, upon leaving the court Thursday, said Duffy had endured more public humiliation than any Canadian in history.
On Friday, Bayne said he didn’t know if Duffy could succeed in a civil lawsuit, adding it is a “high barrier for people” to file a claim of malicious prosecution.
For now, the Crown has 30 days to appeal the Duffy ruling, although many observers say that the judge’s findings of fact, including that Duffy was a credible witness make an appeal very difficult.
Meanwhile, ethics investigations into the actions of Duffy and Harper’s former chief of staff, Nigel Wright, by the Senate ethics commissioner Lyse Ricard, and the Commons ethics officer Mary Dawson, remain on hold, their spokespeople said.
Conservative MPs turned aside the stinging judicial rebuke of the Harper-led PMO, and rejected Vaillancourt’s conclusion it was “ruthless” in its control over the senate and trying to contain the Duffy senate spending scandal..
“It was very strong language,” said MP Candice Bergen, a former minister in Harper’s government. “It was not my experience and I would say that if you talked to a number of my former Cabinet colleagues that they would tell you the same thing.”
Bayne, in turn, rejected suggestions that Vaillancourt’s comments on the previous government went too far.
“They were in no way inappropriate. They were at the heart of the final three charges, and that was what engaged the Canadian public and the Canadian media — all the political finagling at the highest levels in Canada.”
The three charges related to Duffy’s acceptance of $90,000 from Wright to repay the Senate were all tossed by the judge.
Bayne said Vaillancourt “was very courageous.”
“Because the truth is, whether we like to admit or not, judges are people. There are more and less courageous ones. They — the courageous ones — are the ones who’ll stand up to the authorities of the state, the government and its highest echelons, the RCMP and the Crown; and there are judges who’ll find it easier to go along.”
In New York, Prime Minister Justin Trudeau said Friday the Duffy trial showed a greater need for openness and transparency, and suggested that under a new government representative in the Senate and a new speaker, that work is underway.