RCMP: Making Plans for Nigel

May 1, 2014

Last week the RCMP announced that it would not proceed with charges against Nigel Wright in connection with his $90,000 payment to Senator Mike Duffy – investigation over.

The investigation into Wright may have concluded but there can be legitimate questions raised as to why the RCMP did not proceed with charges.  After all, the RCMP had previously sworn that there were reasonable grounds to believe that Wright committed offences contrary to section 119(1)(b), 121(1)(b), and 122 of the Criminal Code.  

There may be a number of reasons that the RCMP declined to charge Wright – however – given the available facts the RCMP’s decision seems to be more tactical than legal.

It is possible that the RCMP did not believe that there were reasonable grounds that Wright had committed an offence – this would be the legal explanation.

The existence of reasonable ground (a lesser standard that proof beyond a reasonable doubt) requires there be some evidence of both a guilty act (actus rea) and a guilty mind (mens rea).  

The RCMP conducted a lengthy interview with Wright about his role in the repayment Duffy’s expenses and it appears that Wright fully cooperated.  He provided a detailed statement, he waived privilege, and he provided the RCMP email evidence.  

In the interview with the RCMP Wright denied any ill motive.  The RCMP’s search warrant reported that Wright claimed his motive was protecting taxpayers:

Mr. Wright then offered to cover the cost for Senator Duffy, believing it was the proper ethical decision that taxpayers not be out that amount of money.

A charge under section 119(1)(b) of the Criminal Code – bribery – requires an element of corruption.  Clearly Wright is believed he did not have a corrupt purpose – perhaps the RCMP believed this too.  However, the balance of the evidence presented in the ITO casts doubt on Wright’s claims.  

The trail of email evidence makes it clear that the Wright-Duffy transaction was not a simple payment to protect taxpayers born of pure motives.  If this was the case why were there detailed and high level discussions about the repayment? Why were there conditions attached? Why was there was a quid pro quo?

These are facts that the RCMP could not have ignored.

Even if the RCMP did ignore the evidence that contradicted Wright’s claims of an innocent motive it can’t be ignored that a charge under section 121(1)(b) of the criminal code – fraud on the Government – does not require proof of corruption.  

The Supreme Court in considering the related offence under section 121(1)(c) made clear the irrelevance of motive:

In my view, given the heavy trust and responsibility taken on by the holding of a public office or employ, it is appropriate that government officials are correspondingly held to codes of conduct which, for an ordinary person, would be quite severe.   For the public, who is the ultimate beneficiary of honest government, it is not so easy to sort out which benefits are legitimate and which are laden with a sinister motivation.  Moreover, it is inefficient for a government to be paralyzed by rumour and innuendo while an inquiry is made into the motivation behind a certain benefit or advantage conferred on an official.  What Parliament is saying through this provision is that the damage sought to be prevented is actually done once the benefit is conferred, and not after an ex post facto analysis which demonstrates that no harm was intended.  It is from the point of the conferral of the benefit forward that the appearance of integrity has been slighted.

Parliament has explicitly stated that such damage can also occur where benefits are received by government employees even where no ill motive existed.  

Bottom line – even if the RCMP accepted Wright’s claims – even if his motive was not corrupt – there still existed reasonable grounds to proceed with charges.

Leaving aside the requirement of a guilty mind – it is also possible that the RCMP applied an overly narrow interpretation of the type of ‘guilty act’ required to attract criminal culpability.

Criminal liability under section 121(1)(b) simply requires that a person having dealings of any kind with the government confers an advantage or benefit of any kind on an official of the government with which the dealings take place.

Mr. Wright had dealings with the government and he directly conferred a benefit (with strings attached) to an official of the government.

If the RCMP took a narrow view of the elements of an offence under 121(1)(b) it is a view that is inconsistent with the purpose of section 121 and importantly inconsistent with the Supreme Court ruling in R. v. Hinchey where the term ‘dealings of any kind’ is given a broad definition.

Given the breadth of section 121’s applicability it would be odd if the RCMP did not proceed with charges because they believed Wright’s actions fell outside the prohibited conduct.

It appears that there continue to be (on the evidence that has been made public) reasonable grounds to believe that an offence was committed.

If reasonable grounds exist why were there no charges?

The most likely answer is that the RCMP made a tactical – not a legal – decision.  

If Duffy is charged with a criminal offence Wright will surely be the star witness.  By choosing to not charge Wright the case against Duffy is made stronger.  

If Wright and Duffy were jointly charged Wright would not be a compellable witness for the Crown and essential evidence could be lost.  Further, if jointly charged any statements made by Wight and adduced into evidence could not be used against Duffy.  

Most importantly by declining to lay charges the RCMP limit damage to Wright’s credibility and increase his value as a witness.

In a mysteriously leaked letter the RCMP said they were confident Canadians will be informed why Wright was not charged saying: “ we have documented very precisely why and on what basis we have elected not to bring criminal charges against Mr. Wright.”

A tactical decision is not necessarily a wrong decision but given the public nature of the investigation it is certainly appropriate that the RCMP fully explain its decision.