Last week’s acquittal of Senator Mike Duffy on fraud, corruption and bribery offences shows Ontario courts will not find “corrupt” intent lightly. The decision underscores the importance of subjective criminal intent in proving corruption offences and makes it clear that one cannot be tricked or coerced into committing these offences, while at the same time raising a warning about the conduct of payors.
Mr. Duffy’s case is well known. He was accused of improperly claiming expenses related to his Prince Edward Island residence while, it was alleged, actually living in Ottawa. He was also accused of improperly claiming expenses for non-parliamentary partisan or personal activities through pre-signed expense forms, using Senate funds for personal goods and services, and of wrongfully soliciting and accepting C$90,000 from Nigel Wright, then chief of staff to the prime minister, in exchange for repaying and forfeiting his entitlement to those expenses.
While the facts in Mr. Duffy’s case were unusual, the trial judge’s decision provides insight on the Criminal Code corruption offences of breach of trust and bribery. This decision confirms that you really have to mean to break the law in order to actually break the law.
BREACH OF TRUST AND FRAUD
Breach of trust in section 122 of the Criminal Code prohibits acts that seriously or markedly breach the standard of responsibility and conduct expected of someone in a position of public trust. The accused individual must also have acted with the intention to use his or her public office for a purpose other than the public good, such as a dishonest, oppressive or corrupt purpose. It is possible to fall prey to section 122 without holding office — assisting or encouraging a public officer in a breach of trust may make a person a party to the offence.
In the R. v. Duffy decision, Justice Vaillancourt of the Ontario Court of Justice found that the Crown had not proved either the actus reus or the mens rea required for any of the breach of trust charges. At the heart of this finding appears to be the judge’s view that Mr. Duffy honestly and reasonably believed he was acting appropriately and in line with Senate standards and practice, and that all of the impugned expenses were appropriate. Justice Vaillancourt conceded that Mr. Duffy may have shown some opportunism or poor business practice, and that his approach in certain areas of his finances raised legitimate questions about best practices in the area of expenditures; however, this offence requires deliberate and intentional conduct sufficiently serious to move it out of the realm of administrative fault and into the realm of criminal behaviour.
The court also explicitly rejected that Mr. Duffy had shown any “criminal” or “sinister” intent, motive or design in his actions. Therefore, the elevated mental culpability of a “corrupt,” “dishonest” or “oppressive” intent necessary for a breach of trust was not proved beyond a reasonable doubt. A mistake or error in judgment is not sufficient for this offence.
In ruling on the fraud and breach of trust charges, Justice Vaillancourt also considered the absence of so-called “badges of fraud” (e.g., diversion of funds for personal use, kickbacks sought and/or paid, secrecy, false or inflated expenditures), which can provide evidence of criminal intent. For example, he noted that the contracts and expenses in issue were “. . . a far cry from the usual fraud/breach of trust playbook” and that there was no evidence “suggesting expensive wining and dining or lavish living or pricey gambling junkets or secret financial hideaways.” In addition, Mr. Duffy filed the impugned expenses openly and there was no evidence that he had fabricated his expense claims.
Section 119(1)(a) of the Criminal Code makes it an offence for a member of Parliament to corruptly accept money in exchange for some action or inaction done in his or her official capacity. While not at issue in this case, section 119(1)(b) sets out the related offence of corruptly offering or giving a bribe. The Crown alleged that Mr. Duffy solicited and accepted C$90,000 from Mr. Wright in exchange for agreeing to repay the impugned expenses, stop claiming Ottawa living expenses as a resident of PEI, and stop asserting he was entitled to claim those expenses.
In addition to finding that Mr. Duffy had not solicited the payment, Justice Vaillancourt held that Mr. Duffy did not truly, voluntarily or corruptly accept the funds. Rather he was “forced into accepting” the funds by the Prime Minister’s Office; Mr. Duffy only “capitulated” to the payment after his “free will was overwhelmed” by the PMO’s “coordinated and threatening efforts” in order to extricate itself from the political embarrassment surrounding Mr. Duffy’s expenses. Justice Vaillancourt also found that the requirement for “corrupt” acceptance mandates an elevated level of mental culpability, which was not present in this case.
Finally, in finding Mr. Duffy not guilty of the breach of trust charge relating to the C$90,000 payment, Justice Vaillancourt held that Mr. Duffy’s actions were not driven by deceit, manipulations or carried out in clandestine manner, and did not represent a serious and marked breach of the standard expected of a person in Mr. Duffy’s position of trust. The judge did, however, raise questions about the role of the payor in this circumstance, as it was the payor who was the true recipient of any benefit — being the end of Mr. Duffy’s expense saga.
While the verdict was good news for Mr. Duffy, and the decision makes clear the high bar for mens rea, the court directed serious criticism at the payors. This should serve as a warning about the scope of the breach of trust and bribery offences, and the way that payments could be interpreted, possibly leading to prosecutions in the future against those offering or making payments to public officials.