Nigel Wright could avoid facing legal consequences for his central role in the Senate expenses scandal if the RCMP remains focused strictly on possible criminal offences, parliamentary law experts say.
They believe the surest route for prosecutors against Prime Minister Stephen Harper’s former chief of staff is an obscure section of the Parliament of Canada Act.
But, so far at least, the Mounties do not appear to be considering it.
Documents filed in court show the RCMP is intent on proving Wright, along with Sen. Mike Duffy, is guilty of bribery, fraud and breach of trust, as spelled out in the Criminal Code. Neither Wright nor Duffy have been charged with any offence.
Wright personally gave Duffy $90,000 so that the disgraced senator could pay back disputed living expense claims.
Email trails obtained by the RCMP describe a deal whereby Duffy publicly announced he’d repaid the Senate while the Prime Minister’s Office ensured the senator was fully reimbursed, that a Senate committee report on his expenses was softened and that an independent audit raised no questions as to Duffy’s eligibility to sit as a senator for P.E.I., although he lived primarily in Ottawa.
When court documents containing the emails were released publicly in November, Wright insisted his intentions were noble and that he did nothing to break the law.
“My intention was always to secure repayment of funds owed to taxpayers,” he said in a statement at the time. “I acted within the scope of my duties and remain confident that my actions were lawful.”
For Rob Walsh, former law clerk for the House of Commons, the Wright-Duffy transaction appears on its face to be a clear violation of Sec. 16 of the Parliament of Canada Act.
Walsh said he believes it would be easier to secure a conviction under the act than under any of the Criminal Code provisions cited thus far by the RCMP. Indeed, he doubts criminal charges could be made to stick in relation to the Wright-Duffy deal.
“The evidentiary burden I think is less (under the act) and, to that extent, it ought to be an easier task to prosecute,” Walsh said in an interview.
While criminal charges would require proof of intent to act corruptly, the act is more straightforward in stipulating that it’s illegal to give money to a senator or for a senator to take it.
“Under Sec. 16, it doesn’t matter where the money came from or why,” Walsh said.
Former Liberal MP Derek Lee, a lawyer and acknowledged expert on parliamentary procedure and law, agreed with that assessment.
“There’s all kinds of protections and obstacles in the Criminal Code ... and it might be difficult to get a prosecutor to run with this,” Lee said in an interview.
By contrast, he said Sec. 16 of the Parliament of Canada Act is “simpler and more direct and it seems to pertain more, to fit better with the fact situation” of the Wright-Duffy deal.
The act specifies that no senator shall receive “any compensation, directly or indirectly,” for services rendered in relation to any bill, contract, controversy, accusation or other matter before the Senate, House of Commons or any parliamentary committee.
A senator who contravenes the section is “guilty of an offence and liable to a fine” of between $1,000 and $4,000.
The act further stipulates that it is an “indictable offence” to offer compensation to a senator, punishable by up to one year imprisonment and a fine of $500 to $2,000.
An RCMP spokeswoman declined to comment on why the Mounties have made no mention of the act in documents filed in court thus far.
It would appear that no one has ever been prosecuted under Sec. 16 of the act. No record of a prosecution could be found by the office of the Director of Public Prosecutions, who would be responsible for charges laid under the act, the Justice Department or the Library of Parliament.
Lee speculated that the absence of any precedents might account for the RCMP’s apparent reluctance to pursue charges under the act against Duffy and Wright.
“Nobody and their brother, except parliamentarians, would have much of an experience in dealing with the Parliament of Canada Act. They might even consider it off limits,” he said.
“No policeman, untrained specifically in this law, is going to go out on his own and break new ground ... This isn’t a part of their tool kit.”
Walsh speculated that the Mounties may be holding Sec. 16 in reserve, intending to use it if they can’t ultimately make the case for charges under the Criminal Code.
The RCMP may also be citing the Criminal Code provisions for now, as it seeks court approval to access more evidence, because they are seen as being the most serious potential charges that could arise from the affair.
Still, Walsh said a charge under the Parliament of Canada Act would be no trifling matter.
“It’s not to be diminished by being described as a mere statutory offence ... This is an indictable offence, there’s no two ways about that, and it has to be taken seriously.”