Law Times

Law Times • augusT 4, 2014 Page 5 www.lawtimesnews.com The case against Mike Duffy Charges rare as decisions go back two decades By shannon Kari For Law Times f the 31 criminal charges suspended Sen. Mike Duffy is facing in relation to his expense claims, the two that have received the most public attention are among the most rarely prosecuted sections in the Criminal Code. The most relevant case law in defining the elements of the offences of bribery of a judicial officer and fraud on the govern- ment go back at least two de- cades. And the precedents may not provide a legal answer to why the RCMP charged Duffy with those offences but not Ni- gel Wright over the personal $90,000 payment to the senator for him to reimburse residency expense claims. "The RCMP probably made an executive call," says Enzo Rondinelli, a Toronto defence lawyer and adjunct professor at Osgoode Hall Law School. "It is very hard to prove the mens rea aspect, so if you charge both people, it is difficult to pierce the veil and show intent," he says. By charging only Duffy, the Crown can call Wright as its main witness, although "he will clearly be cross-examined to the hilt," he adds. Wright, who was chief of staff to Prime Minister Stephen Harper at the time of the pay- ment, recently returned to a se- nior position with Onex Corp. The suggestion that he should face criminal proceedings arose in a written statement issued by Duffy's lawyer, Donald Bayne, on the eve of the announcement of charges against his client on July 17. "I am sure I am not the only Canadian who will wonder open- ly, how what was not a crime or bribe when Nigel Wright paid it on his own initiative, became however mysteriously, a crime or bribe when received by Senator Duffy," said the statement from Bayne, a partner at Bayne Sellar Boxall in Ottawa. Wright has been told to ex- pect to be called as a witness at the Duffy trial, but that's all. "There was no agreement with the Crown or RCMP," says his lawyer, Peter Mantas, a partner at Fasken Martineau DuMoulin LLP in Ottawa. The bribery section states it's an offence for any holder of a judicial office or a member of Parliament or a provincial leg- islature to "corruptly" accept or obtain, among other things, money or valuable consideration "in respect of anything done or omitted to be done," in an offi- cial capacity. It's also an offence to give or offer money corruptly to a holder of a judicial office as well as member of Parliament or a provincial legislature. The Supreme Court of Canada defined the term "corruptly" in a 1992 ruling dealing with a secret commission prosecution. Secrecy is the "corrupting element of the offence," wrote justice Peter Cory for the majority in R. v. Kelly. "It is the non-disclosure which makes the receipt of the commission or reward corrupt." Peter Sankoff, a criminal law professor at the University of Alberta, says it's "not a very high bar" for the Crown to prove that element based on the facts re- leased so far about the $90,000 payment. But in this section, Sankoff says there has to be some quid pro quo aspect in order to prove culpability. "He has to do something. I think this will turn on the 'in respect of anything done or omitted to be done'" por- tion of the section, he adds. The RCMP originally alleged there was a mutual consideration in an information to obtain pro- duction orders unsealed last fall. Cpl. Greg Horton swore he had "reasonable grounds to believe" both Duffy and Wright had com- mitted the offences of bribery and fraud on the government as well as breach of trust. The 81-page information to obtain detailed various e-mail correspondence between Wright and senior Conserva- tives as well as Duffy and his lawyer. Duffy, through his law- yer, allegedly set a list of condi- tions for repaying the money that included Conservative talking points aimed at publicly downplaying any wrongdo- ing. Wright, who met with the RCMP along with his lawyers, indicated he had agreed to pay the money personally to Duffy, according to the information to obtain. The senator was to immediately repay his expense claims and stop talking to the media. When it comes to the charge of fraud on the government, Sankoff isn't certain either Duffy or Wright meet the definition of whom the section captures because it requires the giver or receiver of the benefit to be some- one who has "dealings with the government." "It means someone who has business dealings or business re- lations," says Sankoff, referring to the majority decision of the Su- preme Court in R. v. Hinchey. "The Crown will have to make a case that someone who works for the government has business dealings with the gov- ernment," he adds. LT NEWS LEXPERT LEGAL EDUCATION SEMINARS FALL 2014 SCHEDULE NEW PROCUREMENT: CRITICAL DEVELOPMENTS FROM PROCESS TO PRACTICE Toronto • October 21, 2014 REVOLUTIONARY PAYMENT SOLUTIONS 2014 & BEYOND: LEGAL & REGULATORY COMPLIANCE PRIMER Toronto • October 29, 2014 THE COMPLETE GUIDE TO DEFENSE & SECURITY PROCUREMENT 2014 & BEYOND: NAVIGATING CANADA'S FAST CHANGING LANDSCAPE Toronto • November 6, 2014 6TH ANNUAL ABORIGINAL LAW: CONSULTATION AND OTHER EMERGING ISSUES Calgary • December 2, 2014 Toronto • December 9, 2014 7TH ANNUAL ADVERTISING LAW: BEYOND THE CASL WALLS Toronto • December 2, 2014 CONDUCTING EFFECTIVE WORKPLACE INVESTIGATIONS: WHEN IGNORANCE ISN'T BLISS Toronto • December 3, 2014 ANTI-BRIBERY AND CORRUPTION COMPLIANCE: COPING WITH THE ONSLAUGHT Calgary • December 8, 2014 Toronto • December 11, 2014 INFORMATION PRIVACY AND DATA PROTECTION Toronto • November 27, 2014 Vancouver • December 2, 2014 CORPORATE GOVERNANCE 2014: CORPORATE GOVERNANCE IN SPECIAL SITUATIONS Toronto • December 4, 2014 Calgary • December 8, 2014 MANAGING RISK IN THE MINING SECTOR – PRACTICAL STRATEGIES FOR SUCCESSFUL OUTCOMES Toronto • November 20, 2014 THE LIFE CYCLE OF PHARMACEUTICALS – ADDING VALUE AT EACH STAGE Toronto • November 4, 2014 DEALING WITH THE LEASE: STATE OF THE UNION! TODAY'S TOP TEN LEASE ISSUES PLUS THE FRANCHISE TRIANGLE Toronto • November 26, 2014 REGISTER ONLINE www.lexpert.ca/cpdcentre WEBCAST OPTION AVAILABLE! For more information or to register, please contact Lexpert® Events at 1-877-298-5868 or e-mail: register@lexpert.ca LEXC1238_Lexpert course ad for fall_7.875x6.5.indd 1 14-07-29 11:20 AM O Business eager to invest in legal profession By Jennifer Brown Law Times Bank of Montreal survey released last week indi- cates investors see the legal profession as a place they want to put their money. The BMO report was somewhat timely as it comes just before the Canadian Bar Association releases its much-anticipated Legal Futures report at its annual conference this month that will address the issue of alternative business structures for lawyers. The Futures commit- tee has been looking not only at ways to fos- ter innovation but how to fund it. According to the BMO survey, almost two-thirds of Canadian entrepreneurs felt the professional services sector — including the legal industry — was an attrac- tive investment opportu- nity for business owners. Doug Porter, chief econ- omist at BMO Financial Group, noted: "Over the past 15 years, the profes- sional services group of in- dustries has grown at an av- erage yearly pace of 3.1 per cent after inf lation, or near- ly a full percentage point faster than the rest of the economy over that period." "There are many ways in- vestment could happen, and that's what I see as exciting in the BMO report — the interest in investing," says Fred Headon, president of the CBA. "We've certainly been looking at how we could foster innovation in the legal profession, and the money to do that and the expertise we will need from others are two important pieces of that. The idea others are looking to offer that up is very encouraging." So how do investors gain entry to the le- gal market? That may be the tough part if the goal is to invest directly in law firms. Headon says Quebec has some f lexibility in terms of multidisciplinary practices where partners can be professionals other than law- yers but notes the rules are "quite tight" else- where in the country. "That will be a limiting factor for those looking to make that kind of investment," he says. "But it may not need to be an equity stake. The BMO report doesn't specify, but per- haps some of these investors would be inter- ested in a loan arrangement." The results cited in the report come from a Pollara telephone survey conducted between March 7 and March 24 with 502 business owners. LT A Investor interest in the legal field is encouraging, says Fred Headon.

• Cover