Wednesday, August 12, 2015

A Bit of the Cross-Examination I'd Love to Put to Nigel Wright.

I'm not Donald Bayne. I haven't had access to the documents or weeks to prepare for the cross examination of Nigel Wright.  These are, however, some of the questions I would put to this witness:

Mister Wright, you were the Chief of Staff to Prime Minister Harper.  You're the top aide to the prime minister, his right hand man and yet, despite your email to the contrary, you maintain that you lied to Mr. Harper, concealed critical information and peddled half truths relating to a scandal about to engulf Mr. Harper and his party.Was that your job and, if so, on whose authority did you keep Mr. Harper in the dark, even misled?

How often would Mr. Harper meet with you on each day? Did you have a standard, scheduled meeting? Were there other, unscheduled meetings? Were these sessions issue focused or were they wide ranging? Did you chat about personal matters, general interest stuff, the goings on in your daily lives? So you would have these various meetings with the one man to whom you answer and never let out a peep about what was going on with Duffy? How many weeks was that or was it months?

You talked with Benjamin Perrin about this. You were both in on it. That's plain from your emails and Perrin's emails and other correspondence. Did you discuss how the prime minister's lawyer would get away with concealing these events from the one person to whom he owes such a clear and powerful professional duty? Wasn't it obvious that, if this matter ever leaked out to the public, it could have enormous adverse ramifications to the prime minister? Did you and Mr. Perrin, of your own volition, put Mr. Harper in such enormous jeopardy? For whose benefit, yours, Mr. Harper's, senator Duffy's?

You testified that you did all this out of a sense of obligation. Did Mr. Perrin act out of some similar obligation to Mr. Duffy? What possible obligation did Mr. Perrin have to Duffy? What interest of Mr. Perrin's was served by him keeping his client in the dark on such a potentially volatile issue?

If Mr. Harper, the legendary micro-manager, truly did not know anything about this is this something you pulled behind his back? Did you act contrary to your duty to your prime minister or did you do this skulduggery with his tacit approval and authority? Was this an act of treachery, the dealings of a rogue agent running the prime minister's office?

Or is this simply the best narrative you can come up with that comports, no matter how awkwardly and unconvincingly, with the facts you cannot deny?

When you and your cohort, Mr. Harper's legal counsel, Benjamin Perrin, wrote those emails did you imagine that they might somehow surface in a court of law? You're both skilled lawyers.  You have a Masters of Laws from Harvard, Perrin is a law professor. The judge is also a lawyer. Do you expect him to believe that two highly accomplished lawyers, such as yourself and Mr. Perrin, would write emails of this nature if they believed they were acting legitimately?

Was it Mr. Perrin's involvement in your scheme that led to his abrupt, unexpected departure from the PMO just a couple of weeks later and his return to the University of British Columbia? Why else would he have left under such bizarre circumstances?

As two such highly educated legal professionals did it not dawn on either of you that you were participating in a scheme that could be considered criminal? Did you not consider this some form of bribery or, if not bribery, extortion on the part of the senator? Are those not matters of such import that you would have no choice but to divulge them to the prime minister? Are crimes or quasi-crimes regularly commissioned or perpetrated in the Prime Minister's Office as this one, by your account, seems to have been?

If this was a legitimate transaction, why on earth would you go to such apparently Herculean lengths to keep Mr. Harper in the dark about what you were doing? Just what was it you didn't want to leave any record of him knowing?

When, as your emails plainly indicate, you decided to run roughshod over the Tory Senate leadership and senator LeBreton in particular, do you expect anyone to believe that you also did that behind Mr. Harper's back? Do you maintain and expect anyone to believe that none of those senators - LeBreton, Tkachuk, Stewart-Olsen - or any of the others in on this also dummied up and never let Mr. Harper in on your scheme?  Half the Tory caucus and the Conservative Party executive must have known what was going on but you insist that Mr. Harper knew nothing, no one told him anything.  How often did you keep Mr. Harper in the dark and about what matters? Who decided what would be concealed from the prime minister, when Mr. Harper would be deliberately misled? Does he delegate that authority to his Chief of Staff? Is it an implied authority?  Or are you simply, hands down, the worst, most duplicitous, untrustworthy, irresponsible Chief of Staff in the history of Canadian politics?

Was there an alternate channel of communication whereby Mr. Harper could be kept up to date yet maintain a pretense of plausible deniability?  Might someone else, such as Arthur Hamilton, been the canary singing in Mr. Harper's ear?

It's difficult, bordering on impossible, to believe that a sophisticated, highly intelligent, accomplished and supposedly straight arrow guy like you can stand here and say that this one time he went full bore "rogue." That just makes no sense.


the salamander said...

.. 'alternate channel' - 'cut-out' - 'firewall' - 'deniability' ...
Ray Novak
Arthur Hamilton - Benjamin Perrin - Client/Attorney Privilege
Stephen Harper
" I had no knowledge of these things"

Well presented, Mound.. Obstruction & Manipulation in the 1st Degree

The Mound of Sound said...

Interesting point, Sal. Can solicitor-client privilege attach to something that wasn't communicated but, to the contrary, concealed from the client? That's the sort of question old lawyers dispatch law students to research.

Anonymous said...

The Mound of Sound said...

The more I think about it, Sal, the more I think that evidence might be privileged. It is counsel's obligation to inform the client of all relevant information. If information is concealed from the client, except at the client's instructions, then the privilege - which belongs to the client, not counsel - probably should be upheld. If, however, the client was a party to the concealment, then no.

Dana said...

It's rather charming that we still believe we are a country of laws.

The Mound of Sound said...

There's always hope, Dana. There's always hope. Actually I'm sort of intrigued about some of the evidence the Crown allowed in through Wright's apparently rambling testimony.

Some of it goes to questions I thought the Crown would object to on the grounds of relevance if the defence had tried to raise it. Harper's involvement is the big one. It would be easy for the Crown to object, claiming that Harper isn't on trial, only Duffy. However that issue was opened by the Crown's main witness and it could be hard to persuade the judge to prohibit the defence from cross-examining Wright on evidence introduced in chief.

We won't know what Bayne's tactics will be until he opens his cross-examination of Wright. The only thing I know is that it has all the makings to be very interesting with a top criminal lawyer conducting the cross.

Unknown said...

There is a bit of hope here in what you write Mound. I've been convinced that Wright will protect Harper and his answers from the crown confirmed that for me, but what your saying is a good criminal defence lawyer, can ask questions, where answers by Wright while not admitting his guilt can reveal more or less the truth. I guess the outcome of this trial may rest on how good a lawyer Bayne is. Do you know much about him?

The Mound of Sound said...

Hi, Pamela. My best Tory pal in Ottawa, a retired judge, tells me that Bayne is excellent. That does seem to be the general view of the man.

What's interesting is that Bayne is up against a highly educated lawyer in Wright. That said it appears Wright's only legal experience is limited and it was on the solicitor side. I've seen nothing to suggest he has any familiarity with litigation, civil or criminal.

Top criminal counsel have to be supremely commanding in the permutations of the criminal code and the rules of evidence. These are areas in which I doubt Wright has much awareness.

Wright has already made statements that seem to open up Bayne's scope for cross-examination, issues that should never have been introduced such as Harper's personal knowledge of these events. I have the impression that the Crown failed to control its witness allowing Wright to establish the evidentiary foundation for unhelpful areas of attack.

It's bizarre to me, enough that I called my brother in Ontario, himself a veteran criminal defence lawyer, to ask him about the Crown's curious tactics.

There are two elements to Duffy's charges - the meat, bribery - and the potatoes, taking liberties with the petty cash. The Crown opened with the minor stuff and Bayne did a pretty good job mashing those potatoes.

Pay attention to the issues Bayne is raising, even if it seems he quickly dropped them. Those are issues he may revisit, again and again, in the course of his cross-examination. It's often only toward the end that counsel will assemble all the parts of that jigsaw puzzle to allow the picture to emerge.

Softly, softly, catchee monkey - Rudyard Kipling.

Anonymous said...

One thing that still annoys me is this notion (obediently parroted by some media) that Wright had some altruistic motive (making "the taxpayer whole"). C'mon...the taxpayer always was "whole." As anyone who has ever worked for government knows (hello CBC reporters) there is such a thing called garnishment. They could have been doing this on a regular basis (salary withholding) without ever needing to get into any of this.

The only reason not to is if you wanted this never to see the light of day (so they could keep using Duffy's talents as a fundraiser).

The Mound of Sound said...

Anon, I was told early last year by a mutual friend I share with Duffy that Old Duff had, in fact, arranged financing for the 90Gs through The Royal Bank. That plan was derailed and I think we'll learn the minutiae of it as the trial proceeds.

The emails reveal a concerted effort to protect Duffy, to treat him differently than all the other senators in trouble. To Harper and the PMO Duffy was a strategic asset, a relentless campaigner worth his considerable weight in campaign contributions. It's why they concocted such an elaborate scheme involving so many prominent Tories in the PMO, the Senate and the Conservative Party complete with a false trail of outright lies to mislead the public and the party faithful.

Duffy was angry. He went to the prime minister at the time of his appointment questioning whether he even qualified to represent Prince Edward Island. He wanted an appointment as an Ontario senator. He was told there was no problem and he could sit as a senator from PEI. With that he fixed up the Cavendish cottage and began living there when he could. He fell slightly short of the number of days that would have met the PEI residency requirement for health care, lower property tax rates, etc. But that was mainly because of the incredible number of days he spent crisscrossing Canada for the Conservatives. He did more, by far, than anyone else and he felt it was unfair that he should be disqualified from claiming the housing allowance due only to his work, most of which was directed out of the PMO.

Senator Carolyn Stewart-Olsen, who with Tkachuck laundered Duffy's Senate audit report, was in the same boat. A New Brunswick native, she had lived and worked for decades in the Ottawa area first as a nurse then with the Reform Party and finally as an aide to Harper in the PMO before he appointed her to the Senate. Subsequent to her appointment, she got herself out of hot water by buying a 'residence' in New Brunswick to log qualifying days in province. Wallin tried to do the same but her interests in New York and Toronto plus the distance travelling to Wadena, Sask. left her in a mess.

Anonymous said...

Isn't this plain out and out corruption MOS? Simple really, why don't we call it what it is instead of eluding to it.