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RCMP and prosecutors must disclose details about why they did not prosecute Nigel Wright for his payment to Senator Mike Duffy, as B.C. prosecutor did in similar situation

More than 31,000 Canadians have signed petition calling for public explanation from the RCMP and prosecutors

Democracy Watch considering private prosecution to ensure full hearing of the legal issues – also calls on Ethics Commissioner and Senate Ethics Officer to rule finally on complaints filed months ago

April 22, 2014

OTTAWA – Today, Democracy Watch called on the RCMP officials and prosecutors who decided not to charge and prosecute Nigel Wright for his payment of more than $90,000 to Senator Mike Duffy to provide a detailed written explanation of their decision, as a B.C. prosecutor did in the Dobell case in 2008 (To see the explanation in B.C. case, click here (PDF document).

More than 31,000 Canadians have signed an online petition calling for a public explanation whenever prosecutors decide not to prosecute someone involved in the Senate spending scandal, as well as for fully independent prosecutors to oversee the investigations to ensure decisions are made based on the facts and the law and no other considerations.

Democracy Watch also called on federal Ethics Commissioner Mary Dawson to launch an examination of the complaint it filed with her in December concerning the actions of Wright and other staff of the Prime Minister’s Officer involved in the Senate scandal. And Democracy Watch called on Senate Ethics Officer Lyse Ricard to rule on the complaint it filed with her also in December about Duffy and other senators’ actions. Both the Ethics Commissioner and Senate Ethics Officer could have ruled last June about Wright’s and Duffy’s actions, if they had acted like watchdogs instead of lapdogs.

On December 4, 2013, Democracy Watch sent a 6-page letter to RCMP Commissioner Robert Paulson setting out a detailed opinion about the law and the evidence that suggested the investigation into the Senate scandal should be expanded to include the actions of people other than Nigel Wright and Senator Mike Duffy.

The letter set out the opinion of Duff Conacher (issued on behalf of Democracy Watch), who has a law degree, and for 20 years has monitored government and business ethics law in Canada, including teaching a course on the law of ethics in government and business for the past three years at the University of Toronto Faculty of Law.

The letter set out an explanation of why the law covers not only Nigel Wright and Senator Mike Duffy, but also others involved in the negotiations that resulted in the payments to Senator Duffy in return for actions by Senator Duffy, and lists the evidence from the affidavit of RCMP Corporal Greg Horton that was released last November, evidence that clearly raises questions about whether these other people violated the law. As a result, the letter suggests that the investigation should be expanded to determine whether these other people violated the law.

Instead of expanding the investigation, the RCMP cut it off last week with a vague, somewhat contradictory three-line statement that said essentially when the RCMP launched their investigation in June 2013 “there were sufficient grounds to pursue the matter with regards to the offences of breach of trust, bribery, frauds on the government, as well as receiving prohibited compensation contrary to the Parliament of Canada Act” but that “Upon completion of the investigation, we have concluded that the evidence gathered does not support criminal charges against Mr. Wright.”

“Given the clear evidence that Senator Duffy was required to do specific things in return for the payment from Nigel Wright, and given that the laws covering this situation have never or very rarely been ruled on by the courts, the RCMP and prosecutors must provide a detailed written explanation of why they have not prosecuted Wright and others involved in the payment to Duffy. If they don’t provide this public explanation, they will face ongoing questions about what they are covering up and whether they have properly enforced the law in the public interest,” said Duff Conacher, Board member of Democracy Watch. “Prosecutors should not be pre-empting the courts ruling on legal issues and evidence in cases where the evidence is clear and the law has never or only rarely been tested, especially when the integrity of government and public officials is involved.”

Democracy Watch is considering launching a private prosecution to ensure a full hearing in the courts, and a judicial ruling, on the actions of several people and the legal issues involved in the Senate spending scandal.

In Democracy Watch’s opinion, the key legal measure is subsection 119(1) of the Criminal Code, which prohibits even offering (as well as giving) “corruptly” any benefit to any public official “in respect of” any action or inaction by the official in their capacity as a public official (even if the official never acts). This subsection also prohibits the public official from even attempting to obtain (as well as obtaining) the benefit. And under section 21 of the Criminal Code, it is a violation to aid or abet anyone in violating any prohibition in the Code, and under section 24 it is a violation to attempt to violate any prohibition in the Code.

There are no past court rulings on subsection 119(1). As Democracy Watch’s letter to the RCMP detailed, based on past rulings concerning a similar section in the Code (subsection 426(1)), Democracy Watch’s opinion is that to violate subsection 119(1) there does not have to be a “corrupt bargain” or a trading of favours between the person who offers or gives the benefit and the public official attempting to obtain or receiving the benefit. All that is needed for a violation is for the benefit to be given in a corrupt way (for example, in secret with a commitment to keep it secret), and for the benefit to be “in respect of” actions or inactions by the official.

The evidence in Corporal Horton’s affidavit revealed last November shows that at least three people other than Nigel Wright were involved in the secret negotiations involving offers of benefits, and payments of money, to Senator Duffy in return for at least three actions by Senator Duffy in his capacity as a senator. And the evidence shows that at least one other person was involved in attempting to obtain, and obtaining, benefits and payments of money for Senator Duffy in return for at least three actions by Senator Duffy in his capacity as a senator.

The secrecy of the negotiations and agreements between Nigel Wright and Senator Duffy; the resignation or firing of Wright, and; the agreement by many of the people involved to issue public statements that concealed that the payment had been given to Senator Duffy, and their agreement to mislead the public about the facts of the situation, is all evidence that the benefits were offered and given to Senator Duffy “corruptly”.

For all of the above reasons, Democracy Watch is requesting that the RCMP officials and the prosecutors involved explain exactly how they took into account the evidence and legal measures set out above in their decision not to prosecute Nigel Wright (and, by implication, others involved), and Democracy Watch will continue pursuing this matter until all the evidence and legal arguments are given a full public hearing.

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Duff Conacher, Board member of Democracy Watch
Tel: 613-241-5179
Cell: 416-546-3443
Email: [email protected]