Saturday, April 11, 2015

The Duffy Trial, or Why we will have an election called within a month

Here's to me...
The Duffy trial is beginning to lurch out of control, if you are a member of the Conservative government of Canada. In just a few days, voters have been exposed to a cascade of visual and sound bites that have snapped necks and focused attention as seldom before. Forgeddabout Who killed JR – we are now intensely aware of three things: What did Duffy do? What did Wright do? What did Harper do?

Three Do’s, one Wright and one to-be-unleashed Duffy are the wrong things for Prime Minister Harper. The Tories are finding out that in a state governed by the rule of law, politicians – even those with majority governments – cannot control the slow, remorseless grinding of the machinery of justice. Once something hits the courts, the momentum shifts to others.

Witness the little bit of information about what Wright said to the RCMP. And the relentless cross-examination by Duffy’s counsel of the Crown’s first witness. The dramatic thump as counsel drops a big volume of emails on to the table in the court room.

My guess is that Wright’s fear – as expressed in an email – of the steady drip drip drip of revelations in the Duffy affair is about to be realized time and again over the next 4 to 8 weeks. And then, to crown it all, Duffy himself will take the stand.

But not before the Crown calls Wright as one of its star witnesses. And perhaps another senator or two (what about some of the senators who were working away on having the Conservative Party pick up the tab for some of Duffy’s expenses?).

The minimum length of a federal election campaign is 36 days. So we could be facing an election before the end of May.

Before Duffy takes the stand.

Hopefully before Wright has to explain, under intensive cross examination that will stretch over several days, exactly what “good to go” means:

Or to explain what happened before, during and after this:

And this exchange of emails:

And how about this?

And this is what I expect Harper to do. Drop the writ, try to fashion the ballot question around good economic governance, a sound hand at the helm during times of external threat, and cut down the time the opposition parties have to finish nominating all their candidates and to campaign.

Of course, during the campaign, brush aside any discussion of the Duffy trial as a matter not to be opined on while it is before the courts.

And sprinkle dozens of little trinkets at targeted niches of voters in the upcoming budget.

As for Duffy, I expect him to beat the charges on expenses, and also not be found guilty of the bribery ones.

For a very good description of the nature of the charges he faces, read the Maclean article you can find here.

Duffy’s counsel has been masterful in laying the foundation for proving that the Crown’s case is not proven beyond a reasonable doubt, in my view.

Here’s the nub of the issue, from Macleans:

The trial of Mike Duffy will revive all of this, and perhaps expose new details we weren’t supposed to know. But, for all that, the trial is still simply about one basic question: Has Mike Duffy, at one point or another in his senatorial career, committed a criminal act?
That question will be asked on 31 charges, covering four sections of the Criminal Code.

And as for the expenses charges, read this:

Regarding the fraud charges, Duffy’s intent will be important. “If he was, for example, submitting expense claims and he legitimately believed that he was entitled to be reimbursed, it wouldn’t be fraud, because he wouldn’t be acting fraudulently,” says Michael Spratt, a criminal defence lawyer. “What they would need to prove is that, not only that he submitted the expense claims or took his residency money, but that he also did that, knowing that he wasn’t entitled to it to accrue a benefit for himself.”
It might matter how other senators claimed expenses and how clear the rules were. “If the standards are unclear, I would expect the defence to look for reasonable doubt here,” Spratt says.

Puts the cross examination in a different light, doesn’t it?

On the bribery charge, you might be wondering why so much time was taken by defence counsel in cross examining the Crown witness on exactly what a Senator’s duties are. Well, from the Maclean summary, consider this:

More simply, this is about bribery. But that apparently raises several questions.
Peter Sankoff, a law professor at the University of Alberta, says the charge is a “stretch. This would be quite a bribery conviction,” he says. “Bribery convictions tend to be for, you bribe somebody and they did something for you. There’s a quid pro quo at the heart of the transaction.”
What did Duffy do in exchange for the money he received? And did he, wonders Sankoff, act in his “official capacity” in doing so? Was Duffy acting in his official capacity when he repaid his expense claims, or does official capacity constitute something more directly related to the powers of a senator, such as voting on, debating or studying legislation?

Now ask yourself: has the defence laid the foundation for an argument that carrying out partisan activities is an integral part of a Senator’s “official capacity”?

He sure convinced me beyond a reasonable doubt!

So, sharpen your pens, bloggers: the election cometh!


  1. Glenn, I think what Bayne has constructed is the foundation for the issuance of a subpoena to the prime minister. The Crown has told Harper he won't be called but Bayne hasn't and, as Harper becomes steadily more interwoven in this narrative, it becomes harder to imagine the trial judge refusing to have Harper called. That would be the end of Stephen Harper, prime minister of Canada.

  2. Duffy has shown he's ready to play rough. Does anyone think that he hasn't stored copies of PMO emails in various places , ready to be leaked . Harper can run to the closet but he can't hide anymore.

  3. John, Vanlsl: The thump of the thick volume of emails on the table in that courtroom was a promise to the Crown and politicians of a death by thousand cuts. If Harper calls the election before he has to appear - assuming his is called upon - and wins, he has four years to erase the memory of his cross examination. If he loses, ball game is over anyway. So, he will drop the writ to get ahead of the curve of drip drip drip corrosive revelations...

  4. "That would be the end of Stephen Harper, prime minister of Canada." and Canadians would party from coast to coast to coast.

  5. But if Harper drops the writ, doesn't that mean he isn't PM anymore - in that he could be called to testify whether he wants to or not? If this is true, could this be why he delays dropping the writ?

  6. Anythings possible with these miscreants but I'll put $10 down on Oct. 19!!


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