On the face of it, the two prosecutions – of two Ontario Liberal party operatives in the Sudbury by-election affair and of former Conservative Senator Mike Duffy in the Senate expenses scandal – have nothing in common beyond the fact that both involved political figures and allegations of bribery.
There are, however, other similarities.
Both involved charges that should never have been laid, because there was no evidence in either case that offences had actually been committed.
But the police and prosecutors in both cases found themselves under pressure to bring the designated miscreants to trial despite the lack of evidence.
In the Duffy case, pressure came from the office of Conservative Prime Minister Stephen Harper and his disciples in Senate who were desperate to shed responsibility for the expenses scandal before the 2015 general election. In the Sudbury case, the police and prosecutors were keenly aware of suggestions that they can be used as tools by the powers at Queen’s Park. What better way to assert independence than to lay charges against supporters of the Liberal government?
The two prosecutions came up against a similar obstacle – sets of rules that were outside the normal scope and scrutiny of the criminal law. In the Duffy case, it was the infinitely flexible expense rules of the upper house. They were designed to be enforced (or not) by the Senate itself, rather than by a judge in a courtroom far removed from the cozy confines of the chamber where members rely on the honour system when approving expenses.
In the Sudbury case, the obstacle was the internal procedures of a political party. The two Liberal operatives were accused of trying to bribe a byelection candidate to stand down so that the party could field a candidate whom it believed had a better chance of winning.
What the police and prosecutors did not understand – but the judge did – was that there was no candidate to be bribed. Andrew Oliver, who had lost the riding in the 2014 provincial election, wanted to run again. But the party leadership wanted someone with a better chance of winning. They settled on Glenn Thibeault, a defector from the NDP. As in most parties, the final decision rests with the leader who has the authority to endorse or reject candidates.
Kathleen Wynne did not want Oliver. She had made that plain. Thus Oliver could not be a Liberal candidate. So, you see, when Pat Sorbara and Gerry Lougheed offered to arrange a job or a provincial appointment, they were just trying to sooth and retain the loyalty of a disappointed supporter. They were not offering a bribe. They were merely offering a bit of patronage on behalf of the premier.
Patronage is not nice. It can be a misuse of public funds. It may prevent better qualified candidates from getting public service jobs. But while bribery is illegal, patronage is not, although maybe it should be. It is the oil that keeps political machines operating.
In both cases, the judges were adamant. In the Sudbury affair, Judge Howard Borenstein shredded the prosecution case. He found it so weak that he would not even call on the defence to present its case. He ordered a rare directed verdict, acquitting the accused on all charges.
In Ottawa, Judge Charles Vaillancourt threw out all 31 charges against Duffy. In a 308-page decision he declared Duffy to be the victim of a “mind-boggling and shocking” abuse in the democratic system. He found Duffy to be the chosen scapegoat in an elaborate coverup that extended into the Prime Minister’s Office.
Now Duffy is suing for $7.8 million in damages. Two questions remain. How much will he collect? And when will the Trudeau government announce a settlement, issue an apology to Duffy for messing up his life (governments will apologize for anything these days), and dump the whole mess back in the lap of the Conservative party?
A cynic would suggest the blame will be dumped in time for October 2019 federal election.