Mike Duffy's legal recourse against Harper PMO limited

Senator Mike Duffy could find himself before the courts again, this time not as defendant but as a plaintiff seeking to recoup money lost during his protracted fraud and bribery trial. But his legal recourse against former members of Stephen Harper's Prime Minister's Office is limited, say lawyers and political experts.

Duffy should demand the pay, benefits and other perks he lost while suspended from Senate, his lawyer says

Senator Mike Duffy, exonerated on 31 charges of fraud, bribery and breach of trust, lost access to his office and Senate expense account three years ago when he was suspended without pay. Now, his lawyers say he should try to recoup some of that money. (Adrian Wyld/Canadian Press)

It is possible that Senator Mike Duffy could find himself before the courts again soon — this time, not as defendant but as a plaintiff seeking to recoup money lost during his protracted trial.

Duffy, exonerated on 31 charges of fraud, bribery and breach of trust, lost access to his office and Senate expense account three years ago when he was suspended without pay. He gained back his salary last summer ​when Parliament was dissolved for the election but remained stripped of the other perks of the job until his acquittal Thursday.

"If I was him, I would certainly demand back the withheld pay from the last two and a half years," Duffy's lawyer, Donald Bayne, told CBC's The House. "That was a suspension without pay."

He said his client intends to return to work at the Senate.

​Gilles LeVasseur, a professor of business and law at the University of Ottawa, agreed that Duffy's first course of action should be to head over to Senate administration and settle all his outstanding claims — owed salary, benefits (with interest) and other costs incurred that were not reimbursed while he was suspended.

"He may have to go before the courts in a civil case and sue the Senate for non-payment for his claims," LeVasseur said. 

'You need to show malice' 

If Duffy feels he was unfairly targeted, he could launch a civil suit against the Crown for malicious prosecution, but it's unlikely it would succeed. Duffy would have to show that there were no reasonable grounds to have initiated prosecution against him and no reasonable prospect of success.

He would also have to establish that he was personally singled out.

"You need to show malice that this guy was targeted," said Jason Gilbert, an Ottawa-based criminal defence lawyer. "Frankly, on the part of the PMO, you might see the malice. Certainly, Justice Vaillancourt's comments demonstrate he saw that. But on the Crown itself, the Ministry of the Attorney General who prosecuted the case, it would be hard to establish."

In his 308-page decision, Ontario Court Judge Charles Vaillancourt launched a scathing rebuke against the efforts by Conservative staff members in the office of former prime minister Stephen Harper to manage the fallout from the Duffy expense controversy.

Judge Charles Vaillancourt portrayed Duffy as an unwilling partner in a scheme to accept a $90,000 cheque from Harper's former chief of staff, Nigel Wright, above, to cover questionable expenses that were likely legitimate.

"The political, covert, relentless unfolding of events is mind-boggling and shocking," he said. "The precision and planning of the exercise would make any military commander proud. But in the context of a democratic society, the plotting that's revealed in the emails can only be described as unacceptable."

Vaillancourt portrayed Duffy as an unwilling partner in a scheme to accept a $90,000 cheque from Harper's former chief of staff, Nigel Wright, to cover questionable but likely legitimate expenses.

Judgment is victory enough

That said, Duffy's options for any recourse against Wright or other former political operatives are limited.​ He could try to sue for defamation but would only have a case if the individuals in question had made slanderous or libelous comments about him outside of Parliament, where they are protected by privilege.

Privilege would also extend to anything that was said about Duffy during his trial and to any submitted evidence or written statements.

Sometimes, in political life, you got your victory, you got a clear judgment, move on.- ​Gilles LeVasseur, professor of business and law, University of Ottawa

"I think what they did was maybe morally wrong, but I'd be stretching to find a legal cause of action to go after them, because they weren't negligent, they didn't engage in any tortious ​acts, they didn't steal his stuff," said Jonathan Collings, an Ottawa-based civil litigation lawyer.

"They did some things that the electorate wouldn't like, and they were punished for it."

LeVasseur said Duffy could try to get a public apology, but those he would be seeking it from wouldn't be legally required to give him one.

To pursue legal action against Harper or the other parties involved might also come off as a vengeful attempt to even the score, LeVasseur said.

"Sometimes, in political life, you got your victory, you got a clear judgment, move on. Do your job as the senator. Be the guy we expect you to be. Perform. That's your victory," he said.​

With files from Hannah Thibedeau and The Canadian Press