Why Duffy shouldnʼt be convicted

December 16, 2015   ·   0 Comments

NOW THAT THE HARPER-LED TORIES are history, little attention is being paid to the trial that once occupied the front pages of Canadian dailies.

Nonetheless, some coverage is being given by The Canadian Press, and it supports our original suspicion that Senator Mike Duffy will ultimately be found not guilty of any of the 31 charges he faces.

For one thing, this is a criminal, not civil, proceeding, and as a consequence the final decision of the trial judge, Justice Charles Vaillancourt, must be based on whether the Crown has proved any of the charges “beyond a reasonable Doubt,” rather than on a balancing of probabilities.

And in criminal cases, an important factor is “mens rea”, the Latin term usually translated as a “guilty mind.”

A fundamental principle of Canadian criminal law is that a crime consists of both a mental and a physical element. Mens rea, the accused person’s awareness of the fact that his or her conduct is criminal, is the mental element, and actus reus, the act itself, is the physical element.

The concept of mens rea developed in England during the latter part of the common-law era (about the year 1600) when judges began to hold that an act alone could not create criminal liability unless it was accompanied by a guilty state of mind. The degree of mens rea required for a particular common-law crime varied. Murder, for example, required a malicious state of mind, whereas larceny required a felonious state of mind.

Today, most crimes, including common-law ones, are defined by statutes that usually con- tain a word or phrase indicating the mens rea requirement. A typical statute, for example, may require that a person act knowingly, purposely, or recklessly.

In the Duffy case, there is no doubt most of the senator’s billings were at least controversial, or that at the time of his appointment as a member for Prince Edward Island, he had long been living in the Ottawa area.

However, the British North America Act required that he be a resident of the province he represented as well as that he own property worth at least $4,000.

Mr. Duffy has now testified that at the time of his appointment he was concerned that it was to represent P.E.I., not Ontario, and that he knew that at least one of the 24 Senate seats for Ontario was vacant. He swears that he expressed his concern but was told by Mr. Harper that his appointment was valid because of his ownership of a cottage near Summerside, P.E.I. and by others that in the circumstances his Ottawa-area home could be claimed for expenses as a secondary residence.

As we see it, if the Duffy home had been in Charloottetown and the cottage was on the Rideau River near Ottawa, the cost to the taxpayers would have been little different from the alleged $70,000, billed over several years, at issue in the trial.

Put another way, if Mr. Harper had instead appointed a P.E.I. resident to fill the vacancy, the senator could have billed the taxpayer for all the nights he or she spent in an Ottawa hotel suite. (At just $200 a night, a typical 80-day Senate session would produce a hotel hill of $16,000, not counting tips and meals. Over the five years at issue in the trial that would have produced a bill of $80,000.)

As for the other billings, primarily for trips and functions related more to the Conservative party than to Senate duties, a more appropriate course of action would have been a civil case seeking repayment to the Crown, with the cost perhaps being shared by the party and senator.
One thing not yet clear from the protracted criminal proceedings is whether, unlike most senators, Mr. Duffy and co-appointee Pamela Wallin suffered pay cuts when they left CTV for the Senate and its current $142,000 base salary.

What is clear is that they were appointed because both had national profiles and could help the Conservative party’s image by showing up at functions across the country.

In the circumstances, we don’t see either senator as guilty of any offence, even on a balance of probabilities.


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