Article content continued

This decision had a profound impact on Mr. Duffy’s criminal case. It made available a comprehensive written record of how my client’s staff managed complex and evolving ethical issues, first Mr. Duffy’s decision to claim living expenses for his Kanata residence and later Mr. Wright’s decision to fund the $90,000 payment. The record also showed that the prime minister was not privy to Mr. Wright’s decision.

As the written record shows, it was our client’s position that Mr. Duffy was constitutionally qualified to sit as a Senator. At the same time, our client held the position that Mr. Duffy’s living expense claims were politically unacceptable and must be repaid, whether or not they were technically permissible under applicable Senate rules.

There is a constitutional principle in Canada that prosecutorial decisions must be independent of partisan considerations. A corollary of this principle is that my client played no role in the decision to charge Mr. Duffy. Contrary to the views expressed by some commentators, no one could believe that my client’s interests were served by criminal charges against Mr. Duffy that were certain to play out through the 2015 federal election.

In Canada, the Crown should prosecute only where there is a reasonable prospect of conviction. The decision to charge Mr. Duffy was made by the RCMP and Crown counsel in the Ontario Ministry of the Attorney General. For a number of reasons, many of which are reflected in Justice Vaillancourt’s decision, I did not understand how the Crown could hope to secure a conviction in relation to the $90,000 payment to the “beyond a reasonable doubt” standard. Of course, in Canada, the prime minister cannot influence criminal charges, so my private views remained just that, and were shared only with my client.