Thursday Thinkpiece: Sankoff Decodes the Duffy Trial

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The Worst $90,000 Ever Spent: Ten Questions About Mike Duffy, Nigel Wright, the Criminal Code and the Canadian Criminal Justice System
Peter Sankoff, Professor, University of Alberta Faculty of Law

Excerpt: Introduction and points 1-4. To read the paper in its entirety, please click on the title above to download from SSRN. Footnotes omitted. They can be found in the original via the link above.

It’s hard to remember a trial that has dominated the public consciousness quite as much as the ongoing case against Mike Duffy. I went to law school when Paul Bernardo was tried, and that’s the last time I can recall public scrutiny of a case that compared to this one. Just like the Duffy trial, there were line-ups for coveted court seats (I know. I got there at 4 am the day Karla Homolka started her testimony, and I couldn’t get anywhere near the courthouse), more reporters than one could reasonably count, and articles strewn across the front page of newspapers across the country for months.

Duffy is attracting similar attention, and understandably so. The case makes for wonderful political theater, delving into diverse issues like the power of the Prime Minister’s office, the legitimacy of the Senate, and the potentially wrongful use of taxpayer money. Without question, the most interesting part of the case involves Nigel Wright’s infamous decision to pay Duffy’s expenses for him – the $90,000 cheque that forms the basis of three specific charges against Duffy. Since being called as a witness, Nigel Wright’s testimony has taken center stage in the media every day, and the probing of the inner workings of the PMO has provided terrific press fodder – especially in the middle of a federal election campaign.

But this part of the case has also raised some great questions about the criminal justice system. Unlike the Bernardo trial, where the primary interest was in the facts of the case, as the legal issues were quite uncontroversial, it is not difficult to sense great confusion about what is actually happening in Duffy’s case. Articles focusing on the case contain headlines like “Who is Really the Accused?” A loud chatter on social media, supported by articles in the print media and online, ask whether Duffy is guilty of any crime at all – at least insofar as the cheque is concerned – and why the cross-examination of Wright unfolded in the way that it did.

Reading through it all, I’m convinced that a large part of the problem is that the merits of the Crown’s case against Duffy and his acceptance of the $90,000 cheque are not easy to understand without a fair bit of legal knowledge. I don’t blame this on the media. The charges are all based on ancient provisions of the Criminal Code that use imprecise or old-fashioned language, and they involve crimes that are not prosecuted very often. This difficulty is exacerbated by some of the choices that the Crown and defence have made in conducting their case. Most of these actions are based on decisions that are extremely rational in isolation. Examined in combination, however, it is easy to feel that “justice” is not being done here and that we are bearing witness to a trial that has very little to do with whether Mike Duffy is guilty of the three counts with which he’s been charged.

To try and sift through all of this, I’m going to start from the beginning and explore the cheque-related charges against Mike Duffy in detail. Here are 10 questions (and answers) that I hope will reveal something about what is taking place in Ottawa.

1) What Exactly are the Charges Against Mike Duffy?

This is a good place to start because, as will become apparent, I’m pretty convinced after reading the coverage of this trial that not everyone is on the same page with respect to what the Crown needs to prove to show that Duffy is guilty of a crime here. Insofar as the cheque he received from Nigel Wright is concerned, Duffy has been charged with three different offences: (1) bribery, contrary to s. 119 of the Criminal Code; (2) fraud on the government, contrary to s. 121(1)(c); and (3) breach of trust, contrary to s. 122. It is somewhat unusual, though hardly unprecedented, that all three charges relate to the same action – the taking of the cheque. In effect, the Crown is alleging that Duffy contravened three different criminal offences by taking Wright’s money – which is certainly possible. An even better possibility is that the Crown isn’t quite sure what Duffy’s actions amounted to – which is also not unprecedented. The Crown will often charge alternative counts where it is unclear exactly what it will be able to prove or whether all the elements of a particular offence can be established. Indeed, there is good reason to believe that in this case the three counts were laid out of an abundance of caution.

The offences are very different. In brief, s. 119 is designed to prevent people from offering bribes to sitting government officials, and to deter government officials from taking them. Section 121(1)(c) is designed to ensure that government officials are not tainted by the appearance of impropriety by taking money from those who have dealings with the government. Section 122 is a “catch-all” provision that is designed to ensure that government officials do not abuse their authority while acting in an official capacity. This section also acts as an “additional” penal provision for government actors who commit fraud while conducting government business to punish the abuse of trust that take place when this happens.

2) It certainly sounds like taking a cheque while acting as a Senator meets the requirements of section 121. Is Mike likely to be found guilty of that offence?

I always like to start with section 121 because, for a variety of reasons, it’s the easiest to resolve. Here’s what the section actually says:

Every one commits an offence who

(c) being an official or employee of the government, directly or indirectly demands, accepts or offers or agrees to accept from a person who has dealings with the government a commission, reward, advantage or benefit of any kind for themselves or another person, unless they have the consent in writing of the head of the branch of government that employs them or of which they are an official;

The nice thing about section 121(1)(c) is that we don’t have to guess about the type of conduct it applies to. In the 1996 decision of R v Hinchey, the Supreme Court went through this offence in detail and provided a breakdown of exactly what the Crown needed to prove in order to get a conviction. For the Crown, the good news is that the section’s object is to ensure that government officials maintain the appearance of integrity. In other words, section 121(1)(c) is not designed to stop improper transactions (which is the core of the bribery provision). It goes much farther than this. Its objective is to deter government officials from engaging in any transaction that could create an appearance of impropriety. As the Ontario Court of Appeal stated, in a decision that was adopted by the Supreme Court in Hinchey, “the government’s business must be free from any suggestion of “under‑the‑table” rewards or benefits made to those who conduct business on behalf of the government by those who stand to gain from those dealings”. Writing for a majority of the Supreme Court in Hinchey, L’Heureux-Dubé J. reiterated the importance of this point by concluding that:

For a government, actual integrity is achieved when its employees remain free of any type of corruption. On the other hand, it is not necessary for a corrupt practice to take place in order for the appearance of integrity to be harmed. Protecting these appearances is more than a trivial concern. This section recognizes that the democratic process can be harmed just as easily by the appearance of impropriety as with actual impropriety itself.

So far, so good – insofar as Duffy was concerned, and it gets better. In Hinchey, the Supreme Court emphasized that there was no need to prove that the government official who took the money had any sort of corrupt intention. Since the section is designed to stop transactions that “look” improper from taking place, there was simply no point in adding any need to prove a “corrupt” intention, as this would effectively transform the section into another version of bribery.

One can sort of understand why the Crown charged Duffy under this section, as on the evidence we’ve heard so far, he meets most of the required elements. He’s undoubtedly a government official, and he probably received a benefit – though this is not as straightforward as it might seem. Hinchey makes clear that “a benefit does not occur when the payment is a reimbursement or does not advance the recipient’s position in any material sense”. In other words, if Duffy was not legally required to pay back the money – in other words, if his ultimate position on the Senate expenses was correct – there is at least an argument to be made that he did not receive a benefit as that term is understood in section 121.

I don’t really wish to analyze that issue much further because, quite frankly, I don’t think that’s why the section 121 count is going to be so hard to prove. In assessing Duffy’s culpability here, it’s important to keep in mind that the section is not designed to deter government officials from taking money. Rather, it’s designed to stop them from taking money from people who have dealings with the government.

Hinchey dealt with this issue in detail. Recognizing that the section as drafted had immense potential breadth and, if interpreted literally, could criminalize the conduct of a government employee who accepted a free cup of coffee from a friend who had tax problems, the Court tried to narrow its application. First, L’Heureux-Dubé J. made it clear that it was wrong to assume that every person who gave a government official money or other benefits was captured by the section. Though s. 121 uses vague language to capture “dealings with the government”, she held that this term had to be interpreted sensibly:

On a literal interpretation, it is difficult to find a person in modern society who does not have some form of dealings with the government. It cannot have been the intention of Parliament to encompass every person in Canada, and many living abroad, into the section. Given the important purpose of preserving integrity, it would appear to me that the section is not interested in regulating the ordinary dealings which go on between Canadians and the government, but is truly concerned with persons who at the time of the commission of the offence had specific or ongoing business dealings with the government and that the gift was such that it could have an effect on those dealings.

This interpretation makes a great deal of sense. On its literal wording, section 121 has an enormous potential breadth, and the basic notion of applying the criminal law with restraint suggests that if the clause’s objective has to be limited to protecting the appearance of impropriety, as it makes no sense to criminalize transactions that do not compromise that appearance.

Here’s an example. Let’s say that for whatever reason, I feel like giving some random government employee $100,000 for him or her to use in their personal lives. There are probably hundreds of good political reasons – and maybe even some ethical ones – for them not to take it. But would this action contravene section 121(1)(c)? Aside from being a taxpayer, I have no dealings with the government whatsoever. I can promise you that it wouldn’t constitute a crime, simply because the section is not designed to stop this sort of transaction.

Which brings us to Nigel Wright. Since the day these charges were initiated, I’ve been mystified about how exactly the Crown intends to prove that s.121 was contravened. Nigel Wright may have been many things, but how the Crown will show that he had “(business) dealings with the government” is completely beyond me. He was part of the government! For the Crown to succeed on this case, it’s going to have to convince Vaillancourt J. to expand the definition of section 121 provided by the Supreme Court in a fairly recent decision. They can talk all they want about the appearance of impropriety (which was certainly present in this case13), but it’s not as if the Supreme Court wasn’t clear about what it meant. Dealings prohibited by s. 121 means “business dealings”. Wright did not have dealings with the Senate that involved any prospect of financial gain for him, and this charge should not succeed as a result.

One last interesting fact relating to section 121 in this trial. There is no factual element of this case that is really disputed with respect to this charge. The evidence clearly indicates that Duffy took a benefit, and knew that it came from Wright (actually, this last point might be disputed – but we’ll have to wait until Duffy takes the stand, assuming that happens, to know for sure). He knew who Wright was, and – despite the fun and games about whether the PM actually signed off (figuratively speaking) on the cheque – there was no written consent to take the money from the head of the Senate. It follows that all of the elements of this offence are satisfied as a legal matter – with the important exception of whether Wright was a person who had “dealings with the government”, something that can be decided as a matter of law without hearing any more

3) What about the bribery charge?

If you thought the section 121 charge was complicated – stay focused here. Bribery charges under section 119 do not get initiated very often, and there’s not a whole lot of jurisprudence to help us navigate these waters. At times, I’m going to dip into the realm of speculation. Hopefully, you’ll agree that it’s educated speculation, but nonetheless, if you’re wondering why the Duffy trial seems somewhat unfocused at times, the bribery charge is the reason. To make a long story short, it’s a safe bet that not everyone watching this trial agrees about what exactly the Crown has to prove to convict Duffy of this charge.

Here’s what section 119 actually says:

(1) Every one is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years who

(a) being the holder of a judicial office, or being a member of Parliament or of the legislature of a province, directly or indirectly, corruptly accepts, obtains, agrees to accept or attempts to obtain, for themselves or another person, any money, valuable consideration, office, place or employment in respect of anything done or omitted or to be done or omitted by them in their official capacity, or

(b) directly or indirectly, corruptly gives or offers to a person mentioned in paragraph (a), or to anyone for the benefit of that person, any money, valuable consideration, office, place or employment in respect of anything done or omitted or to be done or omitted by that person in their official capacity.

Duffy, of course, is charged under subparagraph (a), for accepting money. We can ignore subparagraph (b) for the moment, as it applies to those – like Nigel Wright – who give money to a public official in a way that contravenes the section. Don’t worry, we’ll come back to this one.

The key to a bribery charge is the accepting of money, etc. in “respect of anything done or omitted or to be done or omitted by them in their official capacity”. Unlike section 121, it requires a quid pro quo. To put it another way, under this section it doesn’t matter that a public official takes money, or how bad it looks that he or she has done so. The question is why the money (etc.) was taken. If it was knowingly taken in order to make the recipient do something (or omit to do something), we essentially have a bribe.

Or so you might think. Here’s the problem that seems to be confusing everyone. Section 119 was drafted a long time ago, when legislators still used words like “corruptly”, and added them all over the Code to ensure that people weren’t convicted for acts that didn’t warrant criminal sanction. This element is clearly written into section 119. Therefore, it’s not enough to take money for something done in the person’s official capacity. According to the provision, it has to be taken “corruptly”. Much of the cross-examination of Nigel Wright thus far seems to have focused on showing that Duffy’s taking of the money was not “corrupt”, whatever that means.

So what does it mean? Let me stress that I’m simply providing my opinion here, but I’m going to make the case that the word corruptly means … well, that it means nothing whatsoever, or, at the very most, nothing more than that the exchange was conducted in secret. I think it’s unnecessary surplus wording, and that all of the media and legal focus upon it is over the past year, while understandable, has been completely misguided.

Here’s why. I bet if you rounded up 100 people and asked them what a bribe constitutes, you wouldn’t have too much difficulty getting a common answer. If I pay a government official to do something in their official capacity, my guess is that all 100 of those people would call it a bribe. No one would require me to establish anything else to reach that conclusion. With bribery, the wrongfulness of the act comes from the taking of the money in exchange for the doing of the act in one’s official capacity. There’s simply no need to add any version of “corrupt” onto this. How can one possibly have a bribe, described as I have, that’s not corrupt? And if I’m correct in this assumption, what does the word “corruptly” add to the bribery provision?

Personally, I think that this reasoning is pretty compelling on its own, and there is plenty of precedent for the courts ignoring a word or two in a clause where it adds nothing to the offence,17 but luckily, I have more ammunition. The idea that a crime needs a “corrupt purpose”, as if you can take money to do a government act in a “non-corrupt way”, conflicts with a core principle in criminal law: the idea that motivation is distinct from intent and, moreover, should not be confused with intent. This basic proposition has a sound underpinning. Generally speaking, it’s a bad idea to ask why people do things as a means of ascribing liability (which is not to be confused with asking why people do things as an evidentiary means of figuring out that they intended to do something, which is a good idea). To take the Duffy case as an example, for the purposes of establishing whether he is guilty under section 119 I don’t really care if Duffy took the money after being blackmailed or cajoled, or whether he was acting out of self-interest. I don’t even care if it was a secret plan to expose the Prime Minister. Why should I? A criminal trial is about determining whether he knew what he was doing and had the required elements of fault. If he did, his motivation is no more a concern for the trial judge or jury than the question of why a shoplifter at Walmart took some food off the shelves without paying. Whether it was for personal greed, the joy of stealing or to assuage hunger is not a concern for deciding whether someone is guilty of an offence. Centuries of jurisprudence have concluded that making inquiries of this sort a part of establishing liability is, by and large, a terrible idea. It’s better left to the punishment phase of the proceeding.

While the Supreme Court – or any other court, for that matter – has not dealt with this in the context of a bribery charge, there is some authority to support the theory I’m positing here. Luckily (or unluckily, depending on your perspective), bribery is not the only offence in the Code that uses the term “corruptly”. Check out this offence, contained in section 426 of the Code:

Every one commits an offence who

(a) directly or indirectly, corruptly gives, offers or agrees to give or offer to an agent or to anyone for the benefit of the agent — or, being an agent, directly or indirectly, corruptly demands, accepts or offers or agrees to accept from any person, for themselves or another person — any reward, advantage or benefit of any kind as consideration for doing or not doing, or for having done or not done, any act relating to the affairs or business of the agent’s principal, or for showing or not showing favour or disfavour to any person with relation to the affairs or business of the agent’s principal.

Do you notice how similar it is to bribery? I’d argue it’s almost exactly the same in terms of structure and wording. It deals with the “secret commissions” of agents, and once again, it’s designed to prohibit quid pro quo transactions from people in positions of advantage. Essentially, the idea is that if an agent is acting on your behalf, they shouldn’t take any money in exchange for doing something relating to your business affairs. Pretty sound stuff, no? But once again, there’s that word “corruptly”. In other words, it’s not enough for an agent to take money in exchange for doing something to your business! They have to do it corruptly.

Well, in a 1992 decision named Kelly, the Supreme Court dealt with this provision and, not surprisingly, they decided that the word corruptly didn’t mean much at all and certainly didn’t require proof of anyone’s motivation. At most, it meant that the transaction had to take place “secretly”. According to the Court, the crime was committed if there was the taking of a benefit without disclosing it to the principal. Now, section 426 – despite the similar wording – is different from bribery, but only because this crime does not require an absolute prohibition upon agents taking money for doing certain acts. As the Court stated in the Kelly case, “it is the secrecy of the benefit and not the benefit itself which constitutes the essence of the offence.” In other words, section 426 is more lenient in terms of the conduct it prohibits than bribery because of the nature of the transactions it governs. You can take money, so long as you disclose it – as opposed to bribery, where you just can’t take money to do an official act.

In discussing the secret commission provision, the Court even hinted at the fact that bribery cases needed to be dealt with more strictly:

What meaning should be given to the word “corruptly” in the context of [section 426]? It is argued that the offence is complete as soon as the agent takes the benefit as consideration for influencing the affairs of the principal. This is based upon decisions such as Cooper v. Slade (1858), 6 H.L.C. 746, 10 E.R. 1488, and R. v. Gallagher (1985), 16 A. Crim. R. 215 (Vict. C.C.A.). I cannot accept this position. It stems from the old jurisprudence on the corruption of voters. It is true these cases together with those which deal with the bribery of officials are concerned with the interpretation of “corruption”. However, they are readily distinguishable from the secret commissions cases. In bribery cases there is no prerequisite that an agency relationship exists. Yet the whole aim and object of s. 426 is the protection of the vulnerable principal and the preservation of the integrity of the agent/principal relationship. Furthermore, the nature of a commission is very different from that of a bribe.

It certainly is – but not for any reason that requires a higher mental element to be imposed. As Kelly implies, secret commission cases – which only require that money be taken “secretly” – do not require an absolute prohibition because it’s not always wrong for agents to take money from third parties. But bribery of public officials is – by definition – always wrongful.

My guess is that by now you’ve concluded that I think Duffy is guilty of taking a bribe. Quite the contrary. I think it’s going to be difficult to get a conviction here, but not for any reason relating to the term “corruptly”. Remember those 100 people who were able to identify a bribe? Ask them if what Duffy did constituted the taking of a bribe, and I think you might get plenty of negative answers, no matter how much they might dislike the “flavour” of the transaction. The reason relates to the requirement that the taking of money be “in respect of anything done or omitted or to be done or omitted by them in their official capacity”. The Crown is going to be asking for this term to be interpreted broadly. It will argue that Duffy paid the money back to the government (his reason for taking the money) while acting in his official capacity, and that the PMO (through Wright) imposed a raft of conditions to make all this happen.

It looks bad, and it’s not the type of thing we want to encourage, but I’m not convinced that this is what the provision is designed to capture. The term “in respect of anything done or omitted or to be done or omitted by them in their official capacity” has traditionally applied to “official” acts of governance or the exercise of influence by a government official. Indeed, every bribery case in Canadian history is recognizable by the payment of money (or other reward), followed by the government official performing (or omitting to perform) an act within that actor’s range of power designed to benefit the giver (or related party). The Duffy case, on the evidence we’ve seen thus far, looks nothing like this.

On the other hand, there is evidence supporting the bribery angle. According to the evidence, Duffy took $90,000 even though he thought he didn’t do anything wrong, and then lied about it to the media with lines scripted by the office of the very person who gave him the money. There is certainly a case to be made that the money qualified as a bribe in the broadest sense of the provision.

One last point on this. Keep in mind that under the theory of liability posited here, it makes no difference why Wright gave Duffy the money, or, believe it or not, who gave Duffy the money. If section 119 is contravened by the fact that someone knowingly gave a Senator money in return for political gain (the Crown’s theory), and that this constitutes a bribe, we should be asking questions that go well beyond “why was Nigel Wright not charged?” There is a lot of evidence suggesting that Janice Payne (Duffy’s lawyer) Senator Irving Gerstein and Nigel Wright (perhaps along with other members of the PMO) reached an agreement where “the Conservative Party would repay $32,000 worth of Sen. Duffy’s housing allowance, plus $12,000 in legal fees” and Duffy would “publicly acknowledge he might have made mistakes and misinterpreted unclear Senate rules and repay the money”.

The only difference between this agreement and what actually happened is the amount of money involved. If Wright giving Duffy money constitutes a bribe, and the agreement set out above was actually reached, logic indicates that Gerstein, Payne, Wright and perhaps others in the PMO are guilty of a conspiracy to commit bribery. Seem crazy? Prosecutions for conspiracy require proof of an important act: an agreement between two or more persons to commit a criminal offence, while punishment for conspiracy stems from the notion that the existence of an agreement to commit a crime is an extremely strong indication that the parties intend to move on and execute the offence. At this time, the state is said to be justified in intervening on the rationale that the parties have the requisite moral blameworthiness to warrant the stigma of a criminal conviction. As Doherty JA noted in R v Alexander:

Confederacies bent upon the commission of criminal acts pose a powerful threat to the security of the community. The threat posed by a true agreement to jointly bring about a criminal end justifies a pre-emptive strike by the criminal law as soon as the agreement exists, even if it is far from fruition.

The Code defines the offence of conspiracy in section 465, but aside from the basic statement that conspiring with anyone to commit a crime is, itself, an offence, the section is more of a sentencing and procedural clause than anything else. The elements have been filled in through the common law. In R v O’Brien, the Supreme Court laid out the primary aspects as follows:

It is, of course, essential that the conspirators have the intention to agree, and this agreement must be complete. There must also be a common design to do something unlawful, or something lawful by illegal means. Although it is not necessary that there should be an overt act in furtherance of the conspiracy, to complete the crime, I have no doubt that there must exist an intention to put the common design into effect. A common design necessarily involves an intention. Both are synonymous. The intention cannot be anything else but the will to attain the object of the agreement. I cannot imagine several conspirators agreeing to defraud, to restrain trade, or to commit any indictable offence, without having the intention to reach the common goal.
. . . . .
The definition of conspiracy supposes an aim. People do not conspire unless they have an object in view. The law punishes conspiracy so that the unlawful object is not attained. It considers that several persons who agree together to commit an unlawful act, are a menace to society, and even if they do nothing in furtherance of their common design, the state intervenes to exercise a repressive action, so that the intention is not materialized, and does not become harmful to
any one. The intention must necessarily be present because it is the unlawful act necessarily flowing from the intention, that the state wishes to prevent.

In my view, all of the elements of the conspiracy charge seem to have been met on the evidence we’ve heard thus far. But I’m not raising this to suggest that charges should have been laid. On the contrary, I point it out to show how so many lawyers could have been privy to this transaction and never assumed it constituted a bribe. Without Duffy performing a governmental act in exchange for the money, this conduct remains an odd fit for section 119, and while it is not inconceivable that the Crown could get a conviction here – I am not convinced it’s likely.

Now, this is all interesting stuff, but here’s the point that makes the Duffy trial occasionally so frustrating for legal observers: whether I’m right or wrong, this is ultimately a legal question for the judge to answer. It doesn’t really turn on any fact that’s currently being disputed through hours of cross-examination. Since Duffy clearly took the money, and his actions after the fact are not really being disputed, the only question I can see for the judge is whether paying back his disputed expenses, in a way that seemed to benefit the PMO, constitutes the type of action that is sufficient to make his receipt of the $90,000 “a bribe”.

4) How about breach of trust?

Yet another charge that I wish was easy to decipher. Instead, section 122 of the Criminal Code is one of those strange provisions that captures two completely different types of illegal conduct in the same breath. No, I am not making this up. Here’s what it actually says:

Every official who, in connection with the duties of his office, commits fraud or a breach of trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person.

Read it carefully and focus on the “or” in the first sentence. In effect, you can perpetrate a breach of section 122 by either committing a “fraud” or by committing a “breach of trust”, though in both cases, the illegal act must have been performed in connection with the duties of your office.

Let me explain how this works, because the two acts are very, very different. The fraud part is easy enough. Effectively, in this incarnation, section 122 operates as an additional sanction for officials who commit fraud through use of their public office. Though they are liable – like any member of the public – for committing the crime of “ordinary” fraud (under section 380 of the Code), they get hit with the extra sanction of section 122 for breaching the public trust in the process. In essence, if you commit fraud while using your public office to do so, the Code deems that you should be punished more severely than if the same act is committed by a private person. The Duffy case (the expenses part of it, anyway) is a demonstration of this. Forget about the cheque for a minute. Duffy is also being charged for wrongfully claiming Senate expenses. The primary charge for each of the alleged wrongful acts is fraud – with the argument being that he dishonestly caused the government to lose money. But for each charge there is an additional count of breach of trust attached. Because the fraud was clearly committed “in connection with the duties of his office” – no one disputes this element of the charge – I can promise you one thing: if Duffy’s guilty for any of the section 380 charges, it is an absolute certainty that he will be found guilty of the corresponding section 122 count.

This type of breach of trust has nothing to do with the cheque. There is no evidence whatsoever that Duffy dishonestly induced Nigel Wright to part with money, and so, if he is to be convicted under section 122 in relation to this act, it will be because he committed a “breach of trust” in the broader sense, whatever that means.

Actually, we know exactly what it means. This form of breach of trust is designed as a residual “catch-all” to stop public officials from abusing their power. In a 2006 decision entitled R v Boulanger, the Supreme Court explained what the offence is designed to target:

The purpose of the offence of misfeasance in public office, now known as the s. 122 offence of breach of trust by a public officer, can be traced back to the early authorities that recognize that public officers are entrusted with powers and duties for the public benefit. The public is entitled to expect that public officials entrusted with these powers and responsibilities exercise them for the public benefit. Public officials are therefore made answerable to the public in a way that private actors may not be.

In a nutshell, most public officials have a large amount of discretionary power, much of which is not monitored particularly closely. If they exercise such power abusively – whether or not it constitutes a fraud – the public suffers. Thus, these officials have an obligation to use their powers properly. Let’s say, for example, that a police chief finds out that a friend has been arrested. Rather than allowing the matter to take its course, the chief simply releases the friend and makes the whole thing go away. No crime would be committed, if, as the section states “it were committed in relation to a private person”. I can do my friends favours. I can advance their interests over other people without fear of sanction. But public officals can’t. Doing so involves an improper use of public power and satisfies the definition of a breach of trust.

That said, not every abuse will be culpable. As the Supreme Court noted in Boulanger:

It cannot be that every breach of the appropriate standard of conduct, no matter how minor, will engender a breach of the public’s trust. For example, the personal use of an office computer might be contrary to an employment guideline yet not rise to the level of a breach of trust by a public officer. Such a low threshold would denude the concept of breach of trust of its meaning. It would also overlook the range of regulations, guidelines and codes of ethics to which officials are subject, many of which provide for serious disciplinary sanctions…

“Mistakes” and “errors in judgment” have always been excluded. To establish the criminal offence of breach of trust by a public officer, more is required. The conduct at issue… must be sufficiently serious to move it from the realm of administrative fault to that of criminal behaviour.

Does Mike Duffy’s conduct with the cheque qualify? Personally, I don’t see it – and as is the case with bribery, my conclusion has nothing to do with what looks like the defining feature here: whether his action was “sufficiently serious” to move it into the criminal realm. I simply don’t see the connection with his public office, and here, the case is even clearer than with the bribery count because of the different language and historical approach to the crime. How is the taking of the cheque an “exercise of power and responsibility” – to use the Supreme Court’s words – that somehow compromises the public trust? If you look at every non-fraud breach of trust case in Canadian history you’ll find a common thread: they all involve public officials who used their government granted power for some personal benefit. And then there’s the Duffy case – where the breach of trust somehow involved no real use of power at all. It simply involved the taking of money from another individual.

Once again – there is no real factual controversy here, simply two legal questions for the judge to answer: did Duffy’s taking of the money constitute an act “in connection with the duties of his office” and, if so, was it sufficiently serious (or, to use the Court’s words, did it “represent a “marked” departure from the standards expected of an individual in the accused’s position of public trust”) to warrant the imposition of the criminal sanction. If you ask me, the Crown might meet the second threshold, but I still don’t see how they get past the first.

To read the remainder of this paper, and see the author’s view on questions like “Why Wasn’t Nigel Wright Charged?”, please visit SSRN to download it for free.

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