Reflections, Observations, and Analyses Pertaining to the Canadian Political Scene
Thursday, July 17, 2014
A Blast From The Past
I am sure that some politicos would prefer certain things remain buried in what seems to be a collective public amnesia. Thankfully, the Internet is the gift that just keeps on giving, as this piece from Press Progress reminds us:
31-charges. It's helpful to recall how this scandal broke because that will be fundamental to Duffy's defence.
It began with an e-mail Duffy sent to his close friends. In it he laid out the details of the deal crafted by the PMO. They were going to give him the money, that the RCMP now recognizes as a bribe; they were going to make the Senate report into Duffy's expenses go away; and Duffy was to immediately cease cooperating with Deloitte's auditors.
The thing about that e-mail is that every bit of it is true. Duffy got the money from Wright. Duffy stonewalled the auditors. Tkachuk and Stewart-Olsen "amended" (i.e. laundered) the audit report on Duffy. This was done at the direction of the PMO, with Harper's apparent knowledge and with the knowledge and cooperation of the Tory Senate leadership (which ultimately led to Lebreton getting the sack).
The RCMP has already said, first that the 'gift' from Wright was a bribe, and then that there wasn't sufficient evidence to warrant charging Wright. However they intend to charge Duffy with accepting the bribe.
Can there be a more obvious example of influence peddling than the subversion of the Senate committee that resulted in the laundering of the Duffy audit report? That committee was exercising a judicial or quasi-judicial function. It was receiving evidence, submissions and analysis that was then digested into a report on apparent serious wrongdoing. Corrupting that process surely is a crime in its own right.
It is difficult to understand, Mound, how Wright has escaped being charged. Was a deal struck? Will he be providing evidence in the case? If so, that goes against everything we hear about him being a true blue loyalist to the Conservative Party, unless he is prepared to perjure himself when Duffy's lawyers cross-examine him.
In the chronology you outline, one thing seems certain. Duffy will use every means at his disposal to establish his 'innocence.' I think he will take especial relishing in trying to bring down his old boss. Some have speculated that he will have his lawyer call Harper as a witness. I'm sure the PM will do everything in his power to avoid taking the stand, but invocations of executive privilege or cabinet confidentiality, I suspect, will not go over well in the court of public opinion, even if it prevails in a court of law.
Would he, in fact have a legal basis for refusing to testify?
It will be interesting to hear the "RConsMP" spin how it is that Duffy merits being charged with accepting a $90K "bribe" under Section 119 (a) but the perpetrator of the alleged bribe, Nigel Wright, does not merit being charged with giving the alleged bribe under Section 119 (b).
However, having lived before in a corrupt country, I can say this type of scenario is not entirely new to me. I have seen how some people who had been closely associated with the corrupt government could get away with breaking the law while others are charged, and even jailed, for the same crime.
The answer you seek, Lorne, probably has a great deal to do with why Wright - who alternately either honourably resigned or was fired in disgrace - remained in Ottawa until the RCMP announced he wouldn't be charged whereupon he promptly hightailed it back to Bay Street. Remember Wright was feted by many prominent Tories (Harper excepted) prior to his departure.
Word I was getting from Ottawa back then was that Wright was making it well known around the Hill that, if he was charged criminally, he wouldn't lie to spare Harper. Deciding not to charge Wright took several people off the hook including Perrin and, quite possibly, Harper himself.
That RCMP Commish Paulson treated this as a political case was apparent from his leaked e-mail to his senior officers that CBC published. In it, Paulson absolutely forbade them from having any contact with opposition MPs or Senators without the Commissioner's express prior consent.
My take is that it was enough of a bribe to charge Duffy but not enough of a bribe to warrant bringing down everyone else who was in on it.
I'm still not convinced Duffy will ever stand trial. His defence would see far too many people having to answer far too many awkward questions. People like Wright, Perrin and, potentially, Harper along with LeBreton, Stewart-Olsen (why was she never charged?) and Tkachuk. There's also a considerable paper trail (800 documents I'm told) of memos, e-mails and lawyers letters, some of which I've been told the RCMP hasn't yet seen. Duffy's lawyer, Bayne, said from the outset that there's a 'smoking gun' among them. Usually when you have a treasure trove of documents like these it gives witnesses a lot less wiggle room.
The Harper factor is a hard one to figure out. I think it also guarantees that Duffy won't be seated in any prisoner's dock until after the next election which, coincidentally, would reinstate both him and Wallin in the Senate.
My best old Tory chum has repeatedly opined that Harper could step down before Parliament returns. I'm beginning to think that could actually happen. Flanagan and Carson have written "tell all" books which no one would have dared to do when Harper was at his prime. After throwing Wright under the bus, Harper can't attract top tier talent to his PMO which is a huge problem with an election approaching. Reviving the Duffy business may be more than Harper or his government can bear. The way Wright was feted as he finally left Ottawa suggests to a lot of prominent Tories he's way more important than Stephen Harper.
I'm curious about whether Paulson can survive this. I wouldn't be surprised to see him retire a'la Zaccardelli. Why can't people just fall on their swords any more?
Thanks for the analysis, Mound. The case promises to hold a lot of people's attention for some time to come. My hope is that the trial will not be delayed, but given what's at stake for the Conservatives, we can only imagine the kind of influence that will be exerted behind the scenes to stall it.
John Ivison opines that when the case comes to trial, it could prove a tipping point for many Canadians: http://fullcomment.nationalpost.com/2014/07/17/john-ivison-mike-duffy-trial-could-be-tipping-point-for-canadians/
I suspect that Harper will try to invoke executive privilege, Lorne, which means that this will be a drawn out affair. It's classic Harper strategy -- running out the clock in the hope that he'll be re-elected.
Unless he runs away -- which is also what he has done in the past.
If he does invoke privilege, Owen, I hope people draw the correct inference that he has much to hide. I can also imagine the kind of fodder such cowardly behaviour would provide for the opposition's political ads going into the next election. It would seem that the day of reckoning cannot be far off.
Executive privilege has a different connotation country by country. In Canada, executive privilege extends the power to govern by fiat in an emergency to the prime minister. Our prime minister is not, however, head of state and so the immunity privilege common to heads of state does not apply. A sitting prime minister may be compelled to testify when he/she has relevant evidence to offer. Harper could apply to have a subpoena struck on the basis of relevance, etc., but as the PMO was the very 'crime scene' in this case and as documents point to Harper's personal involvment and awareness of the transaction the RCMP now contend to have been a bribe/influence peddling, Harper might well wind up firmly on the hook.
Here's a thought, twisted as it may be, that just crossed my mind. Imagine the trial of Mike Duffy. Wright, Perrin and Harper all feature on the witness list. They recount their memory of the crime. They describe the crime scene - the prime minister's office. The most elevated crime scene in Canadian history. As they begin to be questioned about their role in the transactions for which Duffy stands charged, each of them invokes the protection against self-incrimination of the Canada Evidence Act. What choice would they have? Their testimony would have to comport with the documentary evidence and the evidence of third party witnesses and it would reveal their participatory role in the perpetration of the crime. Their names are on the memos, the e-mails, the letters and - the cheque. They can't testify about Duffy without implicating themselves and to avoid having their sworn evidence used against them in a future prosecution they would have to scurry for cover behind the Canada Evidence Act. Even Mulroney never got into that sort of bind. Priceless.
Or they could refuse to answer questions and be jailed for contempt or they could lie and face the prospect of perjury charges. And the protection afforded by the Canada Evidence Act is narrow. Evidence the witness gave under oath while it could not be used against them as proof of guilt in a future proceeding carries no protection against others that the witness might implicate in his testimony. For example, under oath Wright could implicate Harper or Perrin or Arthur Hamilton or who knows? Each could wind up doing the same thing, in effect building the case against the others and making their prosecution inescapable.
There are 800-documents, among them one or more 'smoking guns.' The RCMP were given 600 of them. The remainder, who knows?
I doubt that Duffy will emerge unscathed from this. That said he might have the ability to partially vindicate himself and, in the process, take down those who tried to make him their scapegoat. As every hack reporter would put it, only time will tell.
There is one other possibility. The Crown, citing the potentially enormous cost of a full-blown trial (or some other risible excuse) could offer Duffy a real sweetheart deal - conditional sentence, no time, etc., etc. - on one of the truly minor charges and drops the rest. I think that would be the politically convenient way to go. Everyone is off the hook - Wright, Perrin, Harper, Paulson, Lebreton, Tkachuk and Stewart-Olsen, Hamilton - and somebody starts meeting Duffy in coffee shops with cash-stuffed envelopes. It's the Tory Way.
I was watching Power and Politics this evening, and the suggestion that a deal could be offered to Duffy was indeed discussed, Mound. Given that 31 charges have been laid, if they were to offer him a deal to plead guilty. for example, on his fraud over housing allowances, he could accept that and a conditional sentence, hence solving the political headaches facing Harper et al.
I hope that doesn't happen, but I fear it may very well unfold thus.
31-charges. It's helpful to recall how this scandal broke because that will be fundamental to Duffy's defence.
ReplyDeleteIt began with an e-mail Duffy sent to his close friends. In it he laid out the details of the deal crafted by the PMO. They were going to give him the money, that the RCMP now recognizes as a bribe; they were going to make the Senate report into Duffy's expenses go away; and Duffy was to immediately cease cooperating with Deloitte's auditors.
The thing about that e-mail is that every bit of it is true. Duffy got the money from Wright. Duffy stonewalled the auditors. Tkachuk and Stewart-Olsen "amended" (i.e. laundered) the audit report on Duffy. This was done at the direction of the PMO, with Harper's apparent knowledge and with the knowledge and cooperation of the Tory Senate leadership (which ultimately led to Lebreton getting the sack).
The RCMP has already said, first that the 'gift' from Wright was a bribe, and then that there wasn't sufficient evidence to warrant charging Wright. However they intend to charge Duffy with accepting the bribe.
Can there be a more obvious example of influence peddling than the subversion of the Senate committee that resulted in the laundering of the Duffy audit report? That committee was exercising a judicial or quasi-judicial function. It was receiving evidence, submissions and analysis that was then digested into a report on apparent serious wrongdoing. Corrupting that process surely is a crime in its own right.
It is difficult to understand, Mound, how Wright has escaped being charged. Was a deal struck? Will he be providing evidence in the case? If so, that goes against everything we hear about him being a true blue loyalist to the Conservative Party, unless he is prepared to perjure himself when Duffy's lawyers cross-examine him.
DeleteIn the chronology you outline, one thing seems certain. Duffy will use every means at his disposal to establish his 'innocence.' I think he will take especial relishing in trying to bring down his old boss. Some have speculated that he will have his lawyer call Harper as a witness. I'm sure the PM will do everything in his power to avoid taking the stand, but invocations of executive privilege or cabinet confidentiality, I suspect, will not go over well in the court of public opinion, even if it prevails in a court of law.
Would he, in fact have a legal basis for refusing to testify?
It will be interesting to hear the "RConsMP" spin how it is that Duffy merits being charged with accepting a $90K "bribe" under Section 119 (a) but the perpetrator of the alleged bribe, Nigel Wright, does not merit being charged with giving the alleged bribe under Section 119 (b).
ReplyDeleteHowever, having lived before in a corrupt country, I can say this type of scenario is not entirely new to me. I have seen how some people who had been closely associated with the corrupt government could get away with breaking the law while others are charged, and even jailed, for the same crime.
Sadly, Anon, the disease of corruption seems to have invaded Canada's body politic with a vengeance.
DeleteThe answer you seek, Lorne, probably has a great deal to do with why Wright - who alternately either honourably resigned or was fired in disgrace - remained in Ottawa until the RCMP announced he wouldn't be charged whereupon he promptly hightailed it back to Bay Street. Remember Wright was feted by many prominent Tories (Harper excepted) prior to his departure.
ReplyDeleteWord I was getting from Ottawa back then was that Wright was making it well known around the Hill that, if he was charged criminally, he wouldn't lie to spare Harper. Deciding not to charge Wright took several people off the hook including Perrin and, quite possibly, Harper himself.
That RCMP Commish Paulson treated this as a political case was apparent from his leaked e-mail to his senior officers that CBC published. In it, Paulson absolutely forbade them from having any contact with opposition MPs or Senators without the Commissioner's express prior consent.
My take is that it was enough of a bribe to charge Duffy but not enough of a bribe to warrant bringing down everyone else who was in on it.
I'm still not convinced Duffy will ever stand trial. His defence would see far too many people having to answer far too many awkward questions. People like Wright, Perrin and, potentially, Harper along with LeBreton, Stewart-Olsen (why was she never charged?) and Tkachuk. There's also a considerable paper trail (800 documents I'm told) of memos, e-mails and lawyers letters, some of which I've been told the RCMP hasn't yet seen. Duffy's lawyer, Bayne, said from the outset that there's a 'smoking gun' among them. Usually when you have a treasure trove of documents like these it gives witnesses a lot less wiggle room.
The Harper factor is a hard one to figure out. I think it also guarantees that Duffy won't be seated in any prisoner's dock until after the next election which, coincidentally, would reinstate both him and Wallin in the Senate.
My best old Tory chum has repeatedly opined that Harper could step down before Parliament returns. I'm beginning to think that could actually happen. Flanagan and Carson have written "tell all" books which no one would have dared to do when Harper was at his prime. After throwing Wright under the bus, Harper can't attract top tier talent to his PMO which is a huge problem with an election approaching. Reviving the Duffy business may be more than Harper or his government can bear. The way Wright was feted as he finally left Ottawa suggests to a lot of prominent Tories he's way more important than Stephen Harper.
I'm curious about whether Paulson can survive this. I wouldn't be surprised to see him retire a'la Zaccardelli. Why can't people just fall on their swords any more?
Thanks for the analysis, Mound. The case promises to hold a lot of people's attention for some time to come. My hope is that the trial will not be delayed, but given what's at stake for the Conservatives, we can only imagine the kind of influence that will be exerted behind the scenes to stall it.
DeleteJohn Ivison opines that when the case comes to trial, it could prove a tipping point for many Canadians: http://fullcomment.nationalpost.com/2014/07/17/john-ivison-mike-duffy-trial-could-be-tipping-point-for-canadians/
I suspect that Harper will try to invoke executive privilege, Lorne, which means that this will be a drawn out affair. It's classic Harper strategy -- running out the clock in the hope that he'll be re-elected.
ReplyDeleteUnless he runs away -- which is also what he has done in the past.
If he does invoke privilege, Owen, I hope people draw the correct inference that he has much to hide. I can also imagine the kind of fodder such cowardly behaviour would provide for the opposition's political ads going into the next election. It would seem that the day of reckoning cannot be far off.
DeleteExecutive privilege has a different connotation country by country. In Canada, executive privilege extends the power to govern by fiat in an emergency to the prime minister. Our prime minister is not, however, head of state and so the immunity privilege common to heads of state does not apply. A sitting prime minister may be compelled to testify when he/she has relevant evidence to offer. Harper could apply to have a subpoena struck on the basis of relevance, etc., but as the PMO was the very 'crime scene' in this case and as documents point to Harper's personal involvment and awareness of the transaction the RCMP now contend to have been a bribe/influence peddling, Harper might well wind up firmly on the hook.
ReplyDeleteHere's a thought, twisted as it may be, that just crossed my mind. Imagine the trial of Mike Duffy. Wright, Perrin and Harper all feature on the witness list. They recount their memory of the crime. They describe the crime scene - the prime minister's office. The most elevated crime scene in Canadian history. As they begin to be questioned about their role in the transactions for which Duffy stands charged, each of them invokes the protection against self-incrimination of the Canada Evidence Act. What choice would they have? Their testimony would have to comport with the documentary evidence and the evidence of third party witnesses and it would reveal their participatory role in the perpetration of the crime. Their names are on the memos, the e-mails, the letters and - the cheque. They can't testify about Duffy without implicating themselves and to avoid having their sworn evidence used against them in a future prosecution they would have to scurry for cover behind the Canada Evidence Act. Even Mulroney never got into that sort of bind. Priceless.
ReplyDeleteA fascinating scenario, Mound, and one that many of us would take great pleasure in.
DeleteOr they could refuse to answer questions and be jailed for contempt or they could lie and face the prospect of perjury charges. And the protection afforded by the Canada Evidence Act is narrow. Evidence the witness gave under oath while it could not be used against them as proof of guilt in a future proceeding carries no protection against others that the witness might implicate in his testimony. For example, under oath Wright could implicate Harper or Perrin or Arthur Hamilton or who knows? Each could wind up doing the same thing, in effect building the case against the others and making their prosecution inescapable.
ReplyDeleteThere are 800-documents, among them one or more 'smoking guns.' The RCMP were given 600 of them. The remainder, who knows?
I doubt that Duffy will emerge unscathed from this. That said he might have the ability to partially vindicate himself and, in the process, take down those who tried to make him their scapegoat. As every hack reporter would put it, only time will tell.
There is one other possibility. The Crown, citing the potentially enormous cost of a full-blown trial (or some other risible excuse) could offer Duffy a real sweetheart deal - conditional sentence, no time, etc., etc. - on one of the truly minor charges and drops the rest. I think that would be the politically convenient way to go. Everyone is off the hook - Wright, Perrin, Harper, Paulson, Lebreton, Tkachuk and Stewart-Olsen, Hamilton - and somebody starts meeting Duffy in coffee shops with cash-stuffed envelopes. It's the Tory Way.
I was watching Power and Politics this evening, and the suggestion that a deal could be offered to Duffy was indeed discussed, Mound. Given that 31 charges have been laid, if they were to offer him a deal to plead guilty. for example, on his fraud over housing allowances, he could accept that and a conditional sentence, hence solving the political headaches facing Harper et al.
DeleteI hope that doesn't happen, but I fear it may very well unfold thus.