Duffy should be repaid lost wages after acquittal, lawyer argues

Share

Mike Duffy is planning his return to the Senate and his lawyer says he has a strong case to recoup two years in lost wages – and possibly much more – after his acquittal on 31 criminal charges.

Donald Bayne, Mr. Duffy's trial lawyer, says his client should be reimbursed for the time he was suspended without pay from the Red Chamber by his own colleagues in November, 2013, losing out on nearly $270,000 in wages, plus benefits, over two years. Mr. Duffy's salary kicked in again when the election was called last August.

"That was outrageous," Mr. Bayne told The Globe and Mail on Friday, as he sipped tea in a downtown Ottawa Starbucks.

"That amounts to a presumption of guilt. And given the judge's strong vindication of him yesterday, it shows how misplaced that was."

Ontario Justice Charles Vaillancourt on Thursday acquitted Mr. Duffy of 31 charges of fraud, breach of trust and bribery, in a harsh critique of the Prime Minister's Office under Stephen Harper, and in particular former chief of staff Nigel Wright. The judge said the PMO engaged in "mind-boggling and shocking" tactics to make a "political fiasco" go away.

Mr. Bayne, who said he would not be representing Mr. Duffy in any future civil suit, said the senator could also pursue a lawsuit against the government.

"Justice Vaillancourt made clear it was state conduct at the highest level that orchestrated this whole scenario of the $90,000 payment that brought in, in a rush, the RCMP and all this flurry of charges," Mr. Bayne said, referring to the $90,172 payment from Mr. Wright.

"I definitely think there should be a case, yes, for recompensing a person. For putting him through that. The government gave Maher Arar $10.5-million for its state role in what happened to [him], his imprisonment and torture in Syria. And it seems to me the state took action here that was unjustified."

Lawrence Greenspon, one of two lawyers in Ontario specializing in both criminal and civil litigation, said Mr. Duffy should be repaid his wages because "to do otherwise is completely to violate the presumption of innocence."

"Somebody should bring a motion in the Senate to have him paid for that period of time. That's what should happen. And my hat would be off to the senator who has the character to stand up and make that motion," he said.

Mr. Greenspon also said Mr. Duffy could pursue civil avenues against the government on the grounds of a conspiracy to interfere with his livelihood or damage his reputation.

The Senate law clerk, however, said the Senate's decision to suspend Mr. Duffy falls under parliamentary privilege, which gives members legal immunity from the courts. If Mr. Duffy seeks reimbursement for his legal fees, he has to appeal to his peers on the Senate's internal economy subcommittee, but there is no precedent for covering legal fees in criminal proceedings.

Conservative Senate Leader Claude Carignan, who brought forward the 2013 motion to suspend Mr. Duffy and Senators Pamela Wallin and Patrick Brazeau from the Red Chamber, said the suspension was for administrative negligence and never had anything to do with criminal activity.

"It was disciplinary. That's different," he said, adding that he doesn't think Mr. Duffy could successfully win his wages back.

Immediately after the verdict on Thursday, Mr. Duffy was considered a member of the Senate "in full standing" with a full salary and office resources.

Mr. Bayne says his client wants to return to work soon, which would be the first week of May at the earliest.

"He's proudly a senator. He takes the job seriously, he was thrilled when he became a senator, and he wants to be a good senator," Mr. Bayne said.

But he said he worries for his client's health, because he has a serious heart condition.

"I'm concerned for him, because now the adrenalin stops flowing. It's almost overwhelming, the experience and the ending yesterday. He's got to take a little time to gather himself. This is not something you get over with a drink after dinner, or a good night's sleep," Mr. Bayne said.

"It's hard to get your life back."

The fate of the other Senate expense trials are now unclear, with some legal experts speculating the charges against retired Liberal senator Mac Harb and Mr. Brazeau, a former Conservative, could even be dropped.

Both cases deal with the idea of primary residency, which Justice Vaillancourt said in his ruling does not appear to be defined.

The Senate also plans to take legal action against seven former senators who have yet to repay more than $527,000 in expenses deemed by the Auditor-General in last spring's expense report to have been claimed inappropriately.

Mr. Bayne said he doubts Ms. Wallin, whose criminal investigation began more than two years ago, or a handful of senators named in the Auditor-General's report currently under RCMP review, will be charged after Justice Vaillancourt's ruling.

"I don't think … any uncharged senator is going to be charged over this. None," he said.

"Because if there was a message out of the judge's strong judgment yesterday – there shouldn't have been charges in the Duffy case."