Saturday, August 26, 2017
There's a Book In This.
Mike Duffy is suing the Senate and the RCMP for some $8 million in damages over the ordeal that saw him buried in scandal, expelled from the Senate and then charged and acquitted of no fewer than 31 criminal charges after a marathon 60 days, 12 weeks at trial.
There's a book in this, one that will probably never be written.
I won't try to elicit any sympathy for the Cavendish Cottager, then Conservative senator Michael Duffy. He was more like the moth that flew too close to the flame. Not entirely the author of his own misfortune, Duffy was set up and then put through what had all the makings of a political show trial.
Duffy lies at the center of the story but he merely anchors a saga of widespread corruption and manipulation that goes straight into the top tier of the then government, right into the prime minister's office, Harper's PMO, the Conservative Party and the Conservative leadership in the Senate. Atop that festering heap you can toss a thoroughly politicized national police agency and its own leadership. There's the real story, pretty openly albeit obliquely at the heart of the trial judge's verdict and ruling.
It seems I played a role in Duffy's eventual acquittal. Early on I discussed the case a few times at length with a mutual friend who was involved in Duffy's defence team. Through that I was able to have access to information concerning emails and other documents in the case. I mulled it over but simply could not see the bribery/breach of trust basis for the prosecution. That seemed nonsensical to me, not supported by the documents or the known facts. Somewhat timidly I ventured that this wasn't a bribery/breach of trust case at all. The crime was not bribery, it was extortion, and the party extorted was none other than the senator from Friendly Lane, Prince Edward Island. There was a conspiracy to extort or coerce Duffy into complying with the PMO and Harper's demands. My friends heard me out and agreed and that was argued at trial. That was also the finding of Mr. Justice Vaillancourt in paragraph 1231 of his reasons for judgment when he found that Duffy's failure was to capitulate to "extortion."
Any doubt that Justice Vaillancourt understood the real conspiracy is erased in paragraph 1239 of the judgment where the Court held:
[The Crown] stated that Senator Duffy's actions were driven by deceit, manipulations and carried out in a clandestine manner. ...I find that if one were to substitute the PMO, Nigel Wright and others for Senator Duffy in the aforementioned sentence that you would have a more accurate statement.
There was a conspiracy here and it was multi-faceted. It ensnares the PMO, Nigel Wright, the Tory leadership in the Senate, the Conservative Party, the politicized RCMP and, by powerful implication, the prime minister, Stephen Joseph Harper.
Here's something that has never been explained. When was the last time that anyone short of a Mafia Don faced a 31-count indictment? Ordinarily the Crown sifts through potential charges, picks two or three, perhaps four or five, and proceeds to trial on that basis. 31 charges, 12 full weeks at trial?
How many people do you know who could afford to hire senior counsel for 60 days in court plus prep time (reviewing documents, taking minutes of evidence, researching law) and preliminary motions? I know two, perhaps only one.
How many could endure the psychological and physical demands of that sort of ordeal? I'll tell you from my experience you won't find many.
Now consider this. Harper/Wright knew all too well Duffy's vulnerabilities. They knew he was, for practical purposes, broke. If he wasn't, Nigel Wright wouldn't have wound up writing the cheque for Duffy's Senate tab. They also knew that Duffy was old, porcine and burdened with several serious medical problems including a heart condition and Type 2 diabetes.
Then recall the internal memoranda and emails, the discussion about how, if Duffy didn't play ball, they would simply bury him (under the weight of a 31-count indictment perhaps?) in costly litigation or that the ordeal might give Duffy a heart attack also conveniently clearing up a political problem.
Harper and Wright knew they had Duffy in the crosshairs, precisely where they wanted him and, when he wouldn't play ball, they saw to it that he was expelled from the Senate and left to face a trial that was a thinly veiled political persecution, one the veteran judge had no difficulty seeing straight through.
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Funny how an old , fat, sick man beat Harper and will continue to humiliate him in this lawsuit.
Mound, you're quite right that Vaillancourt J. pointed the finger at the PMO and Nigel Wright in dismissing all 31 criminal charges against Duffy. So I find it interesting that Duffy isn't suing Harper, Wright or any of the other PMO conspirators who made his life hell and caused the Con senators to act the way they did. Justice Vaillancourt certainly saw a plot and commented that "the plotting that's revealed in the emails can only be described as unacceptable."
I would have been tempted to sue Harper and Wright too, just to get them under oath at discoveries. But I guess Greenspon decided that the civil case against them wasn't strong enough since, in theory at least, the Senate and RCMP reach their decisions independently.
In the end, I suspect Duffy will come away empty handed. Negligent investigation is a relatively novel tort and the case against the RCMP will be tough to prove. As for the Senate, I can't see a trial judge being keen on judicial review of internal Senate disciplinary policy and the court will likely look for a way to dismiss that action on jurisdictional grounds. But with any luck, Duffy's matter will come to trial in time for the next election, although even that may be a bit ambitious.
You raise good points, Cap, and you won't be surprised that they're also points of disagreement within Duffy's legal camp. Some of the stalwarts believe that Harper and Wright should have been made principal defendants in the suit. Of course it is possible that the writ could be amended to add them later although that can create its own problems.
As a contemporary of Mr. Greenspon and a long-term friend of another involved in this I'll keep the remainder of my views to myself - where they belong.
I appreciate you keeping your views to yourself, but I don't know anyone connected to this and am free to kibitz.
I wonder if the PMO crew could be nailed for civil fraud. In the leading case of Bruno Appliance, the SCC outlined the four elements needed:
1) a false representation made by the defendant;
2) some level of knowledge of the falsehood of the representation on the part of the defendant (knowledge or recklessness);
3) the false representation caused the plaintiff to act; and
4) the plaintiff’s actions resulted in a loss.
If I recall correctly, 1) the PMO promised Duffy that the Senate would drop the investigation into his expenses, or go easy, if he ponied up the cash; 2) the PMO had to have known that it could not guarantee such an outcome in an independent Senate; 3) Duffy only considered paying once he had the PMO's assurance; and 4) the PMO's actions resulted in his suspension from the Senate and loss of pay.
In effect, Wright's $90,000 bank draft was a trap. Duffy planned to fight the Senate committee over his expense claims. This would have exposed all the travel he did for the Party and led to discussion of the legitimacy of his appointment as senator from PEI. It would have dragged on and been highly embarrassing to Brave Sir Stephen. By giving Duffy the money he needed to write a cheque to the Senate in his own name, Wright's provided the means for Duffy to take another course: falsely confess that he'd done wrong and then make it right. This approach had worked for other Senators whose expenses had been questioned, but in Duffy's case it backfired. As Bayne said in his opening statement and showed at trial, the whole thing was "a fiction, a fraud, a lie conceived for political damage-control purposes." Seems to me that someone ought to pay a price for that.
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