Harper in witness box?

Could we one day see Stephen Harper sitting under oath in the witness box being cross-examined by counsel for disgraced suspended Sen. Mike Duffy?

Could we one day see Stephen Harper sitting under oath in the witness box being cross-examined by counsel for disgraced suspended Sen. Mike Duffy?

That question has now moved beyond the theoretical to the distinctly possible.

There would be a lot of twists and turns in this saga before we get there, but this we do know — a Conservative government that had been looking at the end of a tunnel on the Senate-PMO scandal can now see only another tunnel.

There is no question that Duffy has been pawing at the ground, awaiting his chance to bring down those in Harper’s office if cornered.

He needed one last, clear opportunity.

The former Conservative senator could not be more cornered than he was last week, when the RCMP slapped him with 31 charges of fraud, bribery and breach of trust.

The criminal trial gives him the opportunity.

The key charge, at least from a political point of view, is the bribery charge involving the $90,000 payment to Duffy from Harper’s former chief of staff, Nigel Wright.

Duffy’s lawyer, Donald Bayne, has already signalled he will question why it was a criminal offence for Duffy to receive the $90,000, but not for Wright to pay the sum. Wright escaped any charges in April.

It would appear the RCMP did not believe Wright had a corrupt intent in proffering the money, but believed that Duffy had corrupt intent in using his position as a means of extracting the money.

But another key point in the Duffy defence would be a provision under the Criminal Code that would absolve him of fraud in the Wright payoff if the principals had “the consent in writing of the head of the branch of government that employs them. …”

In other words, leaving aside the words “in writing,” did the boss know?

It would likely hinge on a Feb. 22, 2013, email exchange between Wright and then-PMO legal counsel Ben Perrin, in which Wright said he wanted to determine where everyone was on a deal to get the Duffy expenses repaid, apparently a plan to have the Conservative party pay what was then thought to be a smaller amount.

“I do want to speak to the PM before everything is considered,” Wright wrote.

Then an hour later, he wrote: “We are good to go from the PM. …”

Harper has maintained the “good to go” statement was a reference to Duffy repaying his own expenses.

It is no stretch to see the Duffy defence climbing the ladder of Conservative witnesses, including senators Marjory LeBreton, David Tkachuk and Carolyn Stewart Olsen, then moving on up to Sen. Irving Gerstein, who controlled the party fund, party lawyer Arthur Hamilton, former PMO staffers such as Chris Woodcock, Perrin, Wright, and ultimately the prime minister.

“If the matter goes to a full trial and potentially involves the sitting prime minister of the country in connection with matters of the Senate, we would see a mix of politics and law that will be one of the outstanding trials in our history,’’ says Rob Walsh, the retired law clerk to Parliament.

“If it comes to that.’’

It is unlikely this would go to trial before an election scheduled in 15 months, but the prime minister would go to the polls with the Duffy cloud hanging over his head.

As well, we have yet to see the next chapters in the cases of other suspended senators, former Conservative Patrick Brazeau and Liberal Mac Harb (now retired), both of whom have been charged with fraud and breach of trust. Former Conservative Pamela Wallin is under investigation.

Harper could be looking at 17 Senate vacancies by year’s end. And a rigorous auditor general’s probe of Senate expenses, which will likely provide only more examples of misconduct, is underway this summer.

The prime minister could refuse to testify, citing parliamentary privilege, as long as the trial takes place while Parliament is in session. His privilege extends to 40 days beyond the end of a session, or 40 or fewer days before the next scheduled session and he controls the parliamentary calendar.

But beyond the political fallout he would certainly face in refusing to testify, Duffy could argue that the charges related to the $90,000 payment be stayed because a key witness has made himself unavailable.

Duffy has also claimed he had been told by the PMO he could claim Prince Edward Island as his primary residence, that he had the support of Harper and Wright, that he was trapped in a massive conspiracy, evidence of which he holds close in a paper trail he has promised to fully release “when all of the players are under oath.’’

Bombast or not, he has told us, “But wait … there’s more.’’

Tim Harper is a syndicated Toronto Star national affairs writer.

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