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The most important Duffy trial must be held in the court of public opinion

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Mike Duffy

How could the handoff of a $90,000 cheque to Senator Mike Duffy by the prime minister's chief of staff not be worthy of prosecution while the acceptance of the same piece of paper by the senator is?

Wherever the trial of Duffy leads us in the months and years to come, this is the question ordinary Canadians are scratching their heads about today as they pick up a whiff of something not quite as it should be on the breeze from Ottawa -- like the ephemeral scent of a distant skunk's perfume on a summer's night.

This will not be the question at Duffy's trial, however, although it is certainly now one of the key political questions about the PMO-Senate Expenses Scandal that must be answered in the court of public opinion.

As Donald Bayne, Duffy's lawyer, put it in the news clip played on CBC Radio in Edmonton yesterday morning: "I am sure that I am not the only Canadian who will now wonder openly how what was not a crime or a bribe when Nigel Wright paid it on his own initiative became however, mysteriously, a crime or bribe when received by Senator Duffy."

Bayne got that one right, for sure! It is what we used to call the $64,000 Question, which inflation and other factors have apparently now increased to $90,000.

Many of us with some knowledge of the law, I suspect, thought the charges must be more complicated than that. But it would appear not. Here is the explanation of the charge in question, summarized by the Globe and Mail yesterday: "Directly or indirectly corruptly accept, obtain, agree to accept, or attempt to obtain, for himself, money ($90,000 from Mr. Wright)."

I had always thought that offering and accepting bribes was one of those situations that, as we put it in the vernacular, take two to tango. You know, like participating in illegal prostitution… But perhaps not.

Perhaps, as a lawyer consulted by Global News suggested, the RCMP believed Wright didn't corruptly offer the money -- or "that his testimony against Duffy is stronger if he’s not charged himself." In other words, a common variation on the oldest prosecutorial trick in the world.

Meanwhile, I was struck by the sleaze exhibited by Prime Minister Harper and his PMO staff as they tried to have it both ways, implying Senator Duffy is guilty while hiding behind the sub judice rule to avoid commenting on their own part in the affair.

Said Jason MacDonald, Harper's communications director, in a carefully parsed statement: "Those who break the rules must suffer the consequences. The conduct described in the numerous charges against Mr. Duffy is disgraceful. As this is now a criminal matter that is before the courts, we have nothing further to add."

Very well. But in that case, please shut up!

Bayne is right too that it is important for us ignoramuses in the general population not to pre-judge Duffy's guilt or innocence. And it is quite true that, up to now, Senator Duffy has had a fair hearing in neither the Senate nor the media, and certainly not at the hands of the PMO.

But in reality there are two concurrent trials that must take place.

The first, in the judicial system, is to determine the validity of the 31 charges laid by the Royal Canadian Mounted Police against Senator Duffy. That will take a long time and will most certainly not render a verdict until well after the next Canadian general election.

The other is in the court of public opinion, where it behooves all of us who are citizens of Canada to consider the matter much more quickly than the wheels of Justice can be expected to grind. 

Like a juror instructed by the judge not to consider a certain statement made by a witness, we may have to set aside the question of Senator Duffy's guilt or innocence while we proceed with the much more important matter of the actions of the Prime Minister's Office, and the prime minister himself.

In such a case, we may legitimately bring down a Scotch Verdict: Not Proven … but worthy of consideration nevertheless.

In the mean time, we are all forgiven if we await with a little shiver of anticipation the witnesses Duffy's counsel can be expected to call -- including Wright, and Harper himself -- to make his case that "when the full story is told, as it will be, and shown to be supported by many forms of evidence, it will be clear that Senator Duffy is innocent of any criminal wrongdoing."

This post also appears on David Climenhaga's blog, Alberta Diary.

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