Mike Duffy ruling could put brakes on expense cases against other senators

Theexoneration ofSenator Mike Duffy on 31 charges offraud, bribery and breach of trust could havesignificant implicationsfor the cases againstother senators under scrutinyfor their expenses.

"I think that the cases against the other senators haveonly gotten weaker after this judgment," said criminal defence lawyer Michael Spratt.

"This judgment has clarified how unclear the Senate rules are and what were the Senate policies and practicesin place at the time, he said. "That information certainly would weakenthe Crown'scase inrespecttothosetypes ofexpenses,maybe tothepointwhere there is no reasonableprospectfor conviction."

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However, Sprattdid say that much ofJustice CharlesVaillancourt'sdecision turned on Duffy's own credibility and reliability.

"So interms of any prospect of convictionthat rely onfactors like that, the other cases will have to be looked at in isolation."

So far, only Senator Patrick Brazeauand retired senator Mac Harbface trials in relation to alleged inappropriate housing and living expenses, with each facingonecount offraud and breach of trust.

Last June, Auditor General Michael Ferguson, following a two-year review of Senate spending, sentnine casesto theRCMPfor possible investigation.

CBC News has sincelearned that theRCMPwould not pursue criminalchargesagainstsome ofthose senators flagged by Ferguson, but it is unclear which cases. Meanwhile, the RCMP's investigation into Senator Pamela Wallin'squestionable expenses is still in the hands of the Crown's office.

But withVaillancourt'sdismissal of all charges against Duffy,a precedent has been set for the standard of review of the evidence in all these potential and currentcases, said criminal defence lawyer Joseph Neuberger.

"As long as there can be some connection to Senate business, it'sgoingto be an expense that should be allowed and it's not going to be a criminal act," Neuberger said. "So I think this will have a very serious impact on the other cases and investigations."

Daniel Lerner, aformer Ontario Crown prosecutor, said much of the Crown's decision to prosecute the other senatorsmay rest on how much Duffy'scase wasspecific to Duffy and how much of it can be applied to the evidence about the other senators.

"In that sense it could have a lot of impact if there are similarities," Lerner said."It could have little impact if there's not those similarities."

'Inconsistent verdicts aren't ideal'

Technically, a future judge is not bound byVaillancourt'sdecision, he said.And another judge could come to a differentconclusion.

"Inconsistent verdicts aren't ideal. You do want auniformityof law," Lerner said.

However, if the Crown believes that Vaillancourt erred andthere's a basisto appeal the Duffy ruling, they may go ahead and prosecute the other senators, "not worried about inconsistent verdicts, because they think Vaillancourt got it wrong."

Of course,publicinterest and theresources needed to prosecute will alsoplay a role in the prosecutor's decision to pursue these other cases, Lerner said.

"The amount of resources that was spent onthiscase, where yougot 0 for 31 [guilty rulings]is going toinfluencethedecisionin the publicinterest," he said.

Jason Gilbert, an Ottawa-basedcriminal lawyer, said he doesn't believe the Duffy verdict will have much effect onthe Crown'scases against Harband Brazeau. He said, for example, the Crown is continuing to pursue another sexual assault case against Jian Ghomeshi, even though the former CBC radio hostwas cleared ofall charges in a previous trial.

Crown may learn from mistakes

"But they're not going to do it in a vacuum either, Gilbert said. "They're not going to just shake off Duffy now and put it behind them and move on. They are certainly going to look at the identified shortcomings of [the Duffy] prosecution, identify the mistakes made. [They won't] leave anything to inference the way they largely took [things] for granted in this case."

However, for the senators who haven't been charged, butwhose cases are in the hands of the RCMP, Gilbert said the Mountiesmay look at those "and say in light of Duffy and the findings, 'We're not going to proceed with laying charges.'

"I think they would have to take the outcome of [Thursday's] proceedings and look at that and say 'Listen, we may not have the goods.'"