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Gift? Or bribery and fraud? A legal opinion on the Wright-Duffy affair

Why public-office holders can’t exchange $90,000 favours


 

Sean Kilpatrick/CP

What started out as a $90,000 gift to repay taxpayers has gone from political scandal to criminal allegations. RCMP documents released yesterday allege that Nigel Wright and Mike Duffy committed bribery and fraud and are being investigated for breach of trust. None of these allegations have been proven in court.

So how does a financial gift meant to reimburse Canadians for a senator’s inappropriate expenses become potential bribery and fraud? We asked Penny Collenette, adjunct law professor at the University of Ottawa, for some legal clarification on this complicated situation.

Question: In the case of Nigel Wright writing Senator Duffy a cheque, how does this constitute bribery?

Answer: Wright says to Duffy, allegedly, I will pay you the money out of my own pocket if you agree to the talking points the PMO is going to help you with. And then Duffy says in return, I need to have the Senate committee report whitewashed.

We don’t know all the details, but [for a bribery charge, it can’t] just be negotiation. That will have to be proven in court, of course.

Q: And how do the fraud allegations come in?

A: Fraud. Misrepresentation. The easiest word I can use is “lie.” In this case, was the public lied to? Were there actually bribery negotiations at the beginning? That to me would be Step One. Then was Step Two the fraud? The cover-up? The lie? The problem you have with the Senate is they only have oversight of themselves.

Q: We can see how the $90,000 would benefit Senator Duffy. What would Nigel Wright get in return?

A: To make the problem go way. Why did he get involved? Because they needed the problem to go away.

Q: So if I pay someone to help with a debt, that’s against the law?

A: It is if you’re a public official. This is where it gets really complicated. For example, MPs cannot accept any gift over $500. They can’t accept any more than that because they could be bought.

If all this goes away, everyone will say this was nothing but political negotiation. But it’s not that when [if the allegations are true] you’re trying to tamper with the [Deloitte] report, when one public-office holder is paying another public-office holder out of his own pocket to make something go away.

Q: What if it were just $90,000 as a favour?

A: If you look at Section 16 of the Parliament of Canada Act, you’ll see very clearly that two public-office holders cannot be exchanging these kind of favours.

In this case, we are dealing with provisions that have not been used a lot. What you’ve got here: you’ve got criminal law, public law, political public law, administrative law, potential judicial reviews.

What we haven’t focused on in Canada enough is public law. Our House of Commons is in and out of trouble. The Senate has been this big mysterious black hole.

 

Correction: In our earlier conversation with Pennie Collenette, it was mistakenly stated that public officials cannot accept gifts over $200. The Conflict of Interest Code for Members of the House of Commons states MPs can accept gifts valued at $500 or less without disclosing them, with “sponsored travel” as an exception.


 

Gift? Or bribery and fraud? A legal opinion on the Wright-Duffy affair

  1. I think something that got left unsaid above is that for something to be a ‘gift’, at law, it must be given without conditions. It appears, if the RCMP documents are accurately reporting the contents of the emails, that both sides had conditions – Duffy to be ‘made whole’ and have the embarrassing bits taken out of the Deloitte report and Wright/PMO to have Duffy agree to repay the expenses and make certain statements to the media and refrain from making others.

    • So, in law, are we talking bribery or extortion here? The answer seems to depend on who initiated the quid pro quo.

      • Haha! I’m not trying to extort YOU – you’re trying to bribe ME! Or,.. You’re not firing ME – I resign!

        Or, from Monty Python,

        “I paid my 5 quid and you’re not giving me an argument – you’re just disagreeing with everything I say!”

        “I am NOT!”

  2. I would argue that all those perks seats on boards and trusts and corporations should not be wowed under the same principle here – an elected official can’t accept more than $200 because it could lead to the appearance of them being bought (the amount shows how antiquated this flaw actually is) yet they can’t accept lucrative shares and stipends and perks worth far, far more. This should not be allowed. And a public office holder should receive a pension after service and not be permitted to accept employment or benefit for 10 years past their last date of public service. That an MP can resign from office and accept a lucrative position with a private firm in the same day does not pass the smell test.

  3. If Wright gave Duffy the money in exchange for Duffy agreeing to do, or not do, certain things, then that’s a contract, and the money Duffy receives is income.
    Will Duffy be declaring that $90,000 income on his tax return?

  4. Penny Collenette!!! Give me a break. Were you not able to reach Justin Trudeau’s wife on the phone for a quote by deadline?
    Bribery is a criminal code offence (Section 119 and subsequent) and, as such, requires mens rea (guilty mind) on the part of the briber and the bribee. It’s not an either/or. It also requires that there be a benefit for the person giving the bribe (the person receiving it gets the money as the benefit). No Crown attorney would bring a bribery case without strong evidence on the benefit for Nigel Wright, which is far from obvious at this point. The judge would laugh him out of court. It’s the difference between book law and real law.
    If Duffy’s recollection of events is being relied upon to support a criminal case, you’ll have a pretty hard time there. PC Horton did a pretty good job of demolishing the Duff’s credibility in the ITO.

  5. Penny Collinette?? The only law professor available for comment, I presume. Otherwise why would you choose the wife of David Collinette, former cabinet minister. Penny Collinette who worked in Jean Chretien’s office. PLEASE!!!

    • Your comment is just one more example of “If you can’t criticize the arguments being made then criticize the person making them.”

  6. Not the clearest discussion of the law that applies. Perhaps the summary by the RCMP in the report is the best starting point. The legal issues are complicated, but relatively clear. The RCMP obviously spent a lot of time checking the emails and interviews to see if any alleged actions breached the two acts involved – and they seem to have a plausible case for their request to have further emails provided by senators. The question is why they are spreading the net further to gain access to those senators’ emails. We will find out in a few months.

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