1 Nicholas St., Suite 412, P.O. Box 821, Stn. B, Ottawa K1P 5P9
Tel: 613-241-5179 Fax: 613-241-4758
Email: Internet: http://democracywatch.ca
Robert Paulson, Commissioner of the RCMP
RCMP National Headquarters
Headquarters Building
73 Leikin Drive
Ottawa ON K1A 0R2
Fax: 613-993-0260
December 3, 2013
RE: Law and evidence raise serious questions and suggest expansion of investigation of violations of subsection 21(1) and clause 119(1)(b) of the Criminal Code relating to payments offered and made to Senator Mike Duffy in return for actions by Senator Duffy
Dear Commissioner Paulson:
Based on the affidavit of Corporal Greg Horton disclosed last week, and my legal training and 20 years of experience researching and monitoring developments in government and business ethics laws in Canada, including the past three years teaching a course at the University of Toronto Faculty of Law on ethics and good governance in government and business, it is my opinion, on behalf of Democracy Watch, that the RCMP should expand its investigation into the payments offered, and payments made, to Senator Mike Duffy to include more people than just Nigel Wright and Senator Duffy.
I. The Law
Section 21 of the Criminal Code states the following:
“Parties to Offences
Parties to offence
21.(1)Every one is a party to an offence who
actually commits it;
(b)does or omits to do anything for the purpose of aiding any person to commit it; or
(c)abets any person in committing it.
Common intention
(2)Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
R.S., c. C-34, s. 21.”
Sections 23.1 and 24 of the Criminal Code state:
“Where one party cannot be convicted
23.1For greater certainty, sections 21 to 23 apply in respect of an accused notwithstanding the fact that the person whom the accused aids or abets, counsels or procures or receives, comforts or assists cannot be convicted of the offence.
R.S., 1985, c. 24 (2nd Supp.), s. 45.”
and
“Attempts
24.(1)Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.
Question of law
(2)The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.
R.S., c. C-34, s. 24.”
Under section 118 of the Criminal Code an “official” is defined as anyone who “(a)holds an office, or (b)is appointed or elected to discharge a public duty”.
Section 119 of the Criminal Code states:
“Corruption and Disobedience
Bribery of judicial officers, etc.
119.(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.
Consent of Attorney General
(2)No proceedings against a person who holds a judicial office shall be instituted under this section without the consent in writing of the Attorney General of Canada.
R.S., 1985, c. C-46, s. 119; 2007, c. 13, s. 3.”
There are no court rulings that interpret subsection 119(1) of the Criminal Code. Subsection 426(1) of the Criminal Code contains almost exactly the same wording, but applies to business “agents” and business transactions instead of public “officials” fulfilling duties of their office.
In the leading case of R. v. Kelly, [1992] 2 SCR 170, the Supreme Court of Canada ruled that the word “corruptly” in subsection 426(1) does not mean that the offer and acceptance of a benefit by a businessperson has to influence the businessperson’s actions, nor that there has to be an exchange of favours between the giver and the taker.
As the court stated, there does not have to be a “corrupt bargain” between the giver of the benefit and the taker – subsection 426(1) is violated simply by keeping the benefit secret and not disclosing it to people doing business with the businessperson.
The court ruled this even though subsection 426(1) states that, to violate the subsection, the benefit must be offered given “as consideration for” an action by the businessperson. Subsection 119(1) is clearly broader than subsection 426(1) because it covers any benefit offered given “in respect of” any action or inaction by the public official.
As a result of this ruling, it is my opinion, on behalf of Democracy Watch, that there also does not have to be a “corrupt bargain” to violate subsection 119(1) – that subsection is violated even if, in a corrupt way, a benefit is offered or given to a public official (or the public official attempting to obtain or accepting the benefit) in respect of an action, or inaction, by the public official in their capacity as an official (whether or not they actually undertake the action or inaction).
And my opinion, on behalf of Democracy Watch, is also that one “corrupt way” to give a benefit to a public official is to give the benefit in secret, with an intent and commitment to keep it secret and to mislead the public about the facts of the giving of the benefit.
II. The Evidence
The evidence in Corporal Horton’s affidavit that relates to the role of people other than Nigel Wright and Mike Duffy is as follows:
(a) Re: The giving of the benefit to Senator Duffy – was it done “corruptly”?
The negotiations and initial and final arrangement to give a benefit to Senator Mike Duffy were conducted in secret amongst a very few people in the Office of the Prime Minister, and point “u” on page 33 of the affidavit makes it clear that Nigel Wright is very concerned about keeping the negotiations and arrangement with Mike Duffy secret, and Senator Irving Gerstein expresses the same concern in point “h” on page 61.
As the affidavit details, the agreed upon public statements by everyone involved in the arrangements do not disclose anything about the negotiations, or about the benefit given to Senator Duffy. In other words, everyone agreed to mislead the public about the facts of the situation.
As well, Nigel Wright resigned or was fired for having made the payment to Senator Duffy, and the payment has been widely criticized as being wrong, which is further evidence that the giving of the benefit was wrong.
Senator Mike Duffy is an “official” by definition under section 118 of the Criminal Code, and (as set out in points “r” to “x” on pages 30-35 of the affidavit) the benefits of payment of monies were offered to him on the condition that he repay the amount that a Senate committee had determined he owed because expenses were improperly claimed; that he would send a letter to the committee containing agreed upon text, and; that he would only say agreed upon, prepared lines when speaking publicly about the situation. In other words, the payment was given to him “in respect of” actions or inactions by him in his capacity as a senator.
In my opinion, on behalf of Democracy Watch, all of this evidence shows that the benefit was given to Senator Mike Duffy in a corrupt way, and in respect of Senator Duffy’s official duties, and therefore my opinion is that the giving of the benefit met the conditions necessary to violate clause 119(1)(b) of the Criminal Code.
(b) Re: Senator Irving Gerstein
Point “y” on page 17 of Corporal Horton’s affidavit states that Nigel Wright informed the RCMP that he had asked Senator Irving Gerstein if he would arrange to have the Conservative Fund, which Senator Gerstein chaired, pay the then-total of Senator Duffy’s expenses of $32,000, and “Gerstein confirmed it would”.
Point “k” on page 22 of the affidavit states that “Nigel Wright informed Senator LeBreton that with ‘Irving’s prior approval’ he offered to have the Conservative Party pay Senator Duffy’s legal bills, if they are reasonable.”
Point “s” #3 on page 32, and points “t” and “u” on page 33 refer to “funds disbursed by the Party” concerning repaying Senator Duffy’s legal fees, and that “Nigel Wright responded that he would try to speak to Senator Gerstein”.
Point “bb” on page 36 of the affidavit also refers to communication between Nigel Wright and Senator Gerstein, as does the end of point “cc” on page 37.
Points “d” to “o” on pages 61-62, which is a summary by Corporal Horton of an interview with Senator Gerstein, reveal that the senator was involved in the negotiations and initial offer to repay Senator Duffy’s expenses and legal fees, and was involved in the payment of Senator Duffy’s legal fees.
Given this evidence that Senator Gerstein, at some point, did offer via Nigel Wright to repay Senator Duffy’s expenses and legal fees in return for actions by Senator Duffy, and was involved in the payment of Senator Duffy’s legal fees in return for actions by Senator Duffy, and given that:
o clause 119(1)(b) of the Criminal Code prohibits even offering a benefit (as well as giving a benefit) to an official “in respect of” an action or inaction by the official in their official capacity;
o Senator Duffy is, by definition, an official for the purposes of the Code, and;
o section 21 of the Criminal Code states that aiding or abetting anyone violating any prohibition in the Code is also a violation of the Code, as is (under section 24) attempting to violate any prohibition in the Code;
therefore, it is my opinion, on behalf of Democracy Watch, that the RCMP should confirm publicly that it is expanding its investigation to cover Senator Gerstein’s actions to determine whether he has acted in a way prohibited by the law.
(c) Re: Arthur Hamilton
Point “j” on page 61; points “k” and “l” on page 62; para. 51, sections “a” and “b” and “d” and “e” on pages 71-72 of Corporal Horton’s affidavit are all evidence that Arthur Hamilton was involved directly in the offer to pay, and the payment, of Senator Duffy’s legal costs, and having these costs paid was one of the lists of benefits offered to Senator Duffy in return for three actions by Senator Duffy (as set out in points “r” to “x” on pages 30-35 of the affidavit -- specifically that Senator Duffy would repay the amount that a Senate committee had determined he owed because expenses were improperly claimed; that he would send a letter to the committee containing agreed upon text, and; that he would only say agreed upon, prepared lines when speaking publicly about the situation).
Given this evidence that Arthur Hamilton, at some point, was involved in an offer to repay, and payment, of Senator Duffy’s legal fees in return for actions by Senator Duffy, and given that:
o clause 119(1)(b) of the Criminal Code prohibits even offering a benefit (as well as giving a benefit) to an official “in respect of” an action or inaction by the official in their official capacity;
o Senator Duffy is, by definition, an official for the purposes of the Code, and;
o section 21 of the Criminal Code states that aiding or abetting anyone violating any prohibition in the Code is also a violation of the Code, as is (under section 24) attempting to violate any prohibition in the Code;
therefore, it is my opinion, on behalf of Democracy Watch, that the RCMP should confirm publicly that it is expanding its investigation to cover Arthur Hamilton’s actions to determine whether he has acted in a way prohibited by the law.
(d) Re: Benjamin Perrin
In Corporal Horton’s affidavit, paragraph 33 on pages 12-13; point q on page 30; point “r” on pages 30-31 of the affidavit; point “s” on page 32; point “t” on page 33; point “u” on page 33-34; point “w” on page 34; point “aa” on page 35; point “ll” on page 40; point “mm” on pages 40-41; points “nn” and “oo” on page 41; point “ddd” subsections “ii” and “iv” on page 45; point “k” on page 53; points “e” and “f” on page 68 are all clear evidence (especially point “q” on page 30, point “r” on pages 30-31, points “t” and “u” on page 33, and point “ll” on page 40) that Mr. Perrin was involved in the negotiations to offer Senator Duffy several benefits (including a financial benefit) in return for three actions by Senator Duffy (as set out in points “r” to “x” on pages 30-35 of the affidavit -- specifically that Senator Duffy would repay the amount that a Senate committee had determined he owed because expenses were improperly claimed; that he would send a letter to the committee containing agreed upon text, and; that he would only say agreed upon, prepared lines when speaking publicly about the situation).