CyberSmokeBlog.blogspot.com: Stephen Harper and Prime Minister's Office join Jack in the box!

Prime Minister Stephen Harper meeting with then Chief of Staff Nigel Wright and Director of Policy, Rachel Curran. (PMO handout)

Nigel Wright, lawyers face legal repercussions unless Harper knew about the Duffy deal, expert says

Stephen Maher
Tuesday, November 26, 2013

Prime Minister Stephen Harper is stuck in a box, with legal pressure on one side and political pressure on the other, says former parliamentary law clerk Rob Walsh.

Andrew Coyne: Stephen Harper’s official version of events regarding Mike Duffy scandal strains credulity

Many people say they have difficulty believing Stephen Harper did not know at least something about the various plots hatched out of his office to pay off Mike Duffy and cover up his bogus expense claims. Maybe he did not know all the details, these people say, but that he did not know anything? That’s hard to believe.

In fact, it is quite easy to believe. For starters, we have the Prime Minister’s word on it. And not only in private conversation, or in some casual slip of the lip, but solemnly, publicly and repeatedly.

Indeed, he has said so in Parliament: that he did not know anything about Nigel Wright’s payment of $90,000 to Senator Duffy; that had he known he would have stopped it; that not only was he kept in the dark about what his Chief of staff had agreed to, but that Mr. Wright actively deceived him.

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In the documents filed in an Ottawa courthouse last week, RCMP Corporal Greg Horton stated that he had reasonable grounds to believe that Nigel Wright violated Section 121(1)(b) of the criminal code when he paid $90,000 of his own money to Senator Mike Duffy.

That section, entitled “Frauds on the government,” forbids anyone dealing with the government from making a payment to a government official “unless the person has the consent in writing of the head of the branch of government with which the dealings take place.”

That means, Walsh says, that Wright may face prison, and two lawyers who had knowledge of the deal may face sanction from their law societies, unless Harper says that he knew about the deal.

“He can’t say that,” said Walsh. “He would then be publicly responsible for the shenanigans that were going on. That’s a political problem for him. Now, legally if he were to say that, these guys get off. If Harper knew what was going on, that removes the criminality.”

Walsh says this situation may explain why Harper has been reluctant to discuss in detail what he did know about the deal.

Walsh doesn’t think that the RCMP is properly interpreting the criminal code, since as a senator, Duffy is a parliamentarian, and not an official of the government, but it appears the RCMP has received different advice.

The Toronto Star reported this week that the RCMP have been consulting with a provincial Crown attorney in the Ottawa courthouse on legal matters, but neither the Ottawa office nor the attorney general’s office would confirm that Monday.

The act requires that “head of the branch of government” must be informed in writing of any payment, but Walsh said a defence lawyer should be able to prove reasonable doubt for Wright even if the prime minister was informed verbally.

“Can you imagine someone being convicted under 121 in the face of evidence that the prime minister was aware?” he said. “I just don’t think it can happen.”

Last week, the Law Society of British Columbia said that it may look into the conduct of Benjamin Perrin, the PMO lawyer who, according to court documents, negotiated with Duffy’s lawyer.

The documents also state that Arthur Hamilton, counsel for the Conservative Party, was also aware of the deal.

If those lawyers didn’t tell the prime minister what was going on, Walsh says, they may face trouble with their professional associations, because if you are the lawyer for an organization, you have a responsibility to make sure that the head of that organization knows.

“What’s the duty of the lawyer?,” he said. “The first question a lawyer has to ask himself with a question like that, is who is the client? If Wright were later convicted, the question is, was Wright the client, or was not he just the instructing officer for the organization? I would think it would be the latter. In which case, the head of the organization, Harper, would be the one that these lawyers would need to inform about the activities of the subordinate, Wright.”

If they told the prime minister, and warned against potentially illegal activity, Walsh said, they ought to be in the clear.

“Having done that, if they have no further involvement, they’re clear,” he said. “It all depends on whether they have dirt on their hands.”

The opposition has recently been posing questions about an email exchange on February 22, in which Wright reports to Perrin that he is was “good to go from the PM once (Perrin) has confirmation” from Duffy’s lawyer.

The exchange appears to refer to a plan to pay Duffy’s disputed Senate expenses out of party funds, a plan the prime minister says he was not aware of.

In the House of Commons on Monday, NDP Leader Tom Mulcair cast doubt on that assertion, suggesting the prime minister must have known the party was planning to pay Duffy’s bills.

Paul Calandra, Parliamentary Secretary to the prime minister, responded that Harper was told Duffy was going to pay the expenses himself.

“We were told that he was going to repay those,” he said. “We subsequently learned that was not true.”

Later, Mulcair said that if Harper wasn’t told about the deal, his lawyers weren’t looking after his interests.

“There’s a code of ethics governing the behaviour of any member of any bar anywhere in Canada,” he said.

“It simply defies belief that these people would have been acting without the knowledge of their client. So either they were doing that, in which case they have a serious ethical problem they’re going to have to eventually answer for, or they weren’t doing that and their client was very much aware, which we think is much more likely.”

The investigation poses a real problem for the prime minister, says Walsh.

“He’s got it either way,” he said. “He can’t admit that he knew anything without having the effect of causing himself political and legal problems.”