New RCMP Information, Duffy, the PMO and Conservative Lawyer Arthur Hamilton

The release of the latest RCMP's information to obtain (ITO) in relation the the Mike Duffy and Nigel Wright affair is not good news for anyone involved.  

The ITO makes clear the level of involvement played by the PMO in the plan to repay Duff’s Senate expenses.  The ITO also calls casts doubt on the veracity of statements made by involved parties in recent weeks.  Importantly the ITO raises legitimate questions about the Prime Minister’s involvement in the affair (or alternatively his complete ignorance to the misconduct of his staff and inner circle).

The ITO also sheds additional light on the involvement and knowledge of Conservative Party's lawyer Arthur Hamilton.

Information to Obtain

In simple terms an ITO is an application to the Court to order the production of documents or data.  The ITO is a sworn document presenting the evidence in support of such a request.  The evidence presented in the ITO must be fair, frank, balanced, and not misleading.  

The party swearing the ITO (the RCMP) must show that there are reasonable grounds to believe an offence has been committed.  They must also demonstrate that reasonable grounds exist to believe that the documents or data they are seeking will afford evidence of the alleged offences.

In this case the RCMP are seeking banking records and Senate emails.

The RCMP swore that they had reasonable grounds to believe that Duffy and Wright committed the offences of bribery, fraud on the government, and breach of trust.  These allegation arise from the $90,000 payment by Wright to Duffy so that Duff could repay his illegitimate Senate expenses.  

In an excellent article today the CBC’s Leslie MacKinnon, Laura Payton provided a detailed overview and analysis of the ITO.  

Up The Ladder

Not surprisingly the ITO contains a now familiar conservative name: Arthur Hamilton.  Mr. Hamilton seems to be the Conservative Party's go to lawyer and has been involvement in the Senate affair, the robocalls scandal, and Election Act litigation.  

Last  month following a great series of articles by Stephen Maher (here and here) I wrote that Mr. Hamilton was walking a razor’s edge in his potentially conflicting duties arising from the Senate affair.

Hamilton is counsel for the Conservative Party.  He has duties to his client but also has concurrent ethical responsibilities to the administration of justice.  

The Law Society instructs that once a lawyer acting for an organization learns that the organization has acted, is acting, or intends to act in a wrongful manner, then the lawyer must report the matter “up the ladder” of responsibility within the organization until the matter is dealt with appropriately.  

This ladder leads to Mr. Harper.     

The duty to report any wrongful acts up the latter - and even Mr. Harper has called Wright's acts a deception - raises the questions I asked last month:

Did Hamilton know of the deception?  Was he willfully blind to it?  Did Hamilton report up the ladder as required?

The recent ITO provides new information that assists in answering those questions.

Th ITO shows that it had become apparent by March 2013, that the amount owed by Duffy was $90,000.  The Conservative Fund had been willing to repay the expenses when the amount was thought to be $30,000 but balked at paying more.

The RCMP’s evidence disclosed that on March 1st, 2013, Nigel Wright advised Senator Irving Gerstein (chair of Conservative Fund Canada) and Arthur Hamilton that he had found a solution to the $90,000 problem.  Wright was going to pay the expenses personally.

The ITO alleges that Hamilton was made aware of Wright’s decision to repay the money.

Senator Gerstein agreed that the Conservative Fund would cover the cost of the legal fees (a generous bill of $12,000).  This transaction was facilitated by Hamilton.

On March 5th, 2013 Janice Payne (Duffy’s former lawyer) wrote Hamilton and Benjamin Perrin (Legal Counsel to the Prime Minister) a proposed email to be sent to Deloitte (who was working ongoing audit of Senate expenses).  The proposal was that Deloitte would withdraw Duffy's name from their review if Duffy repaid the housing allowance.  Wright replied that he would support this proposal with the proper assurances from Deloitte.

If true, this new information cast a very different light on Hamilton’s knowledge.  The question of if Hamilton know about the repayment scheme is answered - he did.

It would also appear that Hamilton knew from the March 5th email that there was at least one string attached to the repayment (there were more - Duffy had a number of conditions).

This is damning information and lies at the very heart of the criminal allegations of bribery and fraud.  This information invariably leads to ethical questions.

Lawyers are bound by rule Law Society Rule 2.02(5) which deals with dishonesty and fraud by a client.  A lawyer shall not

(a) knowingly assist in or encourage any dishonesty, fraud, crime, or illegal conduct;

The ITO presents a compelling argument that in March 2013, Hamilton had knowledge of what was very likely a criminal offence.  If the RCMP's information is accurate, Hamilton not only had knowledge about the details of the scheme but took steps to facilitate it.

What remains to be seen is what else did Hamilton do with that information?  Who up the ladder did he report it to?

The information in the ITO also raises questions about what information Benjamin Perrin knew and what information he disclosed to his client - Stephen Harper.

These are important questions that have flown under the radar in the short time since the release of the ITO.  

After all, when it comes to the Conservative Party and the PMO - all ladders lead to Mr. Harper.