Mike Duffy and the $90,000 Cheque – Part 3 (5mins)

In Case Comments, Case Comments, Criminal Law, Mental Elements by Peter Sankoff4 Comments

My examination of the charges against Mike Duffy relating to the infamous $90000 cheque provided by Nigel Wright continues. In today’s video blog, which is Part 3 of an ongoing examination, I focus upon the final charge: bribery, and the challenges the Crown is likely to have in proving that count of the indictment.  In addition, I address another “lurking” question: if Duffy is guilty of bribery, how could Nigel Wright not be guilty of the same?


  1. Further to my previous comment, does the crown not have a duty to only bring charges in good faith, i.e. if they believe that they have merit? And if they believe the Duffy charges have merit, then must not the same circumstances require a charge against the others? And if the crown is not willing to bring those charges, could a citizen do it on the basis of the crown’s case against Duffy?
    Lots of questions, I know, and you won’t hurt my feelings if you don’t have time to address them.

  2. So in other words attending sessions, speaking, voting on bills etc are his “official capacity” whereas claiming and reimbursing personal expenses are not, but instead personal activities. I definitely see this argument (if that’s what you mean) and you’re probably right in the course of regular expense claims, though for extraordinary situations I still think there’s a case that accepting money to cover up fraudulent expense claims, which would otherwise get him expelled from the senate, in other words activities which determine whether he is permitted to do his work, become by definition his official capacity. In other words, if he is required to non-fraudulently claim senate related expenses in order to be a senator, then that is an official duty. Maybe that’s a stretch, but it may be deemed by a judge that there needs to be some allowance in our criminal code to persecute senators who accept money to cover up their senator-related misdeeds, in exchange for agreeing to lie and keep secrets so that the bribing (oops “gifting”) party can also avoid scandal. I know that something that’s wrong is not necessarily a crime, but charging the bribee and not the briber in the same instance is also wrong. And if carpet bombing a defendant with charges, many weak or spurious, in the hope of helping other charges stick is normal practice then I don’t agree with that (as if my opinion means anything!)

  3. I’m less convinced. He claimed the expenses in his official capacity, to be sure. But that’s not the issue. The question is whether he took the cheque “in his official capacity”, and I think that requires quid pro quo. Whether that requires him to exercise some aspect of his official capacity as part of the benefit will be the interesting legal issue in the case. I’m not saying it’s not possible for the Crown to make its case here – and I think the bribery charge is the strongest of the three, legally speaking. That said, if you look at EVERY bribery charge in history, you see a pattern: a person who takes money to exercise influence. In other words, they USE their official capacity improperly. I’m not saying that you can’t try to mold what happened here to fit the offence; I’m saying there is a good argument against it. It is not a slam-dunk case.

    As for your second question: the Crown has the choice of who to charge. Duffy can try an abuse of process argument (prosecution is acting improperly in bringing his charges, and they should be stayed as a result), but it is the longest of long shots. There is no doctrine of what’s called “selective prosecution” in Canada, and even if there was, I think it would require evidence that the Crown is acting with ill-motive, or for some ulterior gain. I still believe that the most likely reason for not charging Wright lies in Reason #2 that I set out. To have any chance on abuse of process, Duffy’s camp will have to lay a strong evidentiary foundation – and somehow show that the Crown is acting improperly. Tough to do.

    Glad you enjoy the blog. Cheers!

  4. Thanks again Peter, your faithful commenter here.
    If you’ll permit me, I’d just like to challenge your doubts about the “official capacity” issue. In my (layman’s) view, Mike Duffy claimed the expenses in the course of executing his duties, and they are therefore integral components of that official capacity role. If he was not in the official capacity, he could not claim expenses. The argument for quid pro quo is very obvious: giving the cheque benefits the party by sweeping a political problem and embarassment under the rug. For Duffy, he can pay back expenses he shouldn’t have charged in the first place which means that he’s $90k ahead, or at the very least avoids having to defend them. As I mentioned in my previous comment, Duffy can contend that he never doubted the validity of his claims. Wright an others, however, can make no such claims. They clearly believed that the expenses were not valid and would lead to embarassment for the party. The efforts to conceal the bribe (oops, “gift”) and the elaborate collaboration to funnel the money to Duffy is a bit of a no-brainer. The defense that the cheque was only to reimburse the taxpayer sounds like a silly childish fiction. I’m not a lawyer and in no way connected to politics or any of this (just someone who detests the methods and antics of the PMO over the years, so maybe I’m biased here) but the “wrongness” of the secret payment is self evident, not the least of which Wright was fired over it. He should at least be required to stand trial on the same “reasonable” grounds that are being levied at Duffy, and forced to tell his story under oath.
    Question: could the Duffy defense claim something like malicious prosecution given the non-charges against Wright?
    Thanks again, I love this stuff!

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