Disagreement over which law most applicable in Duffy-Wright deal

The RCMP allege that Nigel Wright and Mike Duffy committed fraud, bribery and breach of trust, as defined by three sections of the Criminal Code of Canada.

However, some parliamentary law experts believe criminal charges might not stick and that an easier route to convictions would be to lay charges under the Parliament of Canada Act.

Sec. 16 of the act reads:

16. (1) No member of the Senate shall receive or agree to receive any compensation, directly or indirectly, for services rendered or to be rendered to any person, either by the member or another person, (a) in relation to any bill, proceeding, contract, claim, controversy, charge, accusation, arrest or other matter before the Senate or the House of Commons or a committee of either House; or (b) for the purpose of influencing or attempting to influence any member of either House.

(2) Every member of the Senate who contravenes subsection (1) is guilty of an offence and liable to a fine of not less than one thousand dollars and not more than four thousand dollars. (3) Every person who gives, offers or promises to any member of the Senate any compensation for services described in subsection (1), rendered or to be rendered, is guilty of an indictable offence and liable to imprisonment for a term not exceeding one year and to a fine of not less than five hundred dollars and not more than two thousand dollars.

The RCMP have so far ignored the act and focused on alleged violations of sections 119, 121 and 122 of the Criminal Code:

119. (1) Every one is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years who (a) being the holder of a judicial office, or being a member of Parliament or of the legislature of a province, directly or indirectly, corruptly accepts, obtains, agrees to accept or attempts to obtain, for themselves or another person, any money, valuable consideration, office, place or employment in respect of anything done or omitted or to be done or omitted by them in their official capacity, or (b) directly or indirectly, corruptly gives or offers to a person mentioned in paragraph (a), or to anyone for the benefit of that person, any money, valuable consideration, office, place or employment in respect of anything done or omitted or to be done or omitted by that person in their official capacity.

121. (1) Every one commits an offence who (a) directly or indirectly (i) gives, offers or agrees to give or offer to an official or to any member of his family, or to any one for the benefit of an official, or (ii) being an official, demands, accepts or offers or agrees to accept from any person for himself or another person, a loan, reward, advantage or benefit of any kind as consideration for co-operation, assistance, exercise of influence or an act or omission in connection with (iii) the transaction of business with or any matter of business relating to the government, or (iv) a claim against Her Majesty or any benefit that Her Majesty is authorized or is entitled to bestow, whether or not, in fact, the official is able to co-operate, render assistance, exercise influence or do or omit to do what is proposed, as the case may be; (b) having dealings of any kind with the government, directly or indirectly pays a commission or reward to or confers an advantage or benefit of any kind on an employee or official of the government with which the dealings take place, or to any member of the employee's or official's family, or to anyone for the benefit of the employee or official, with respect to those dealings, unless the person has the consent in writing of the head of the branch of government with which the dealings take place; (c) being an official or employee of the government, directly or indirectly demands, accepts or offers or agrees to accept from a person who has dealings with the government a commission, reward, advantage or benefit of any kind for themselves or another person, unless they have the consent in writing of the head of the branch of government that employs them or of which they are an official; (d) having or pretending to have influence with the government or with a minister of the government or an official, directly or indirectly demands, accepts or offers or agrees to accept, for themselves or another person, a reward, advantage or benefit of any kind as consideration for co-operation, assistance, exercise of influence or an act or omission in connection with (i) anything mentioned in subparagraph (a)(iii) or (iv), or (ii) the appointment of any person, including themselves, to an office; (e) directly or indirectly gives or offers, or agrees to give or offer, to a minister of the government or an official, or to anyone for the benefit of a minister or an official, a reward, advantage or benefit of any kind as consideration for co-operation, assistance, exercise of influence, or an act or omission, by that minister or official, in connection with (i) anything mentioned in subparagraph (a)(iii) or (iv), or (ii) the appointment of any person, including themselves, to an office; or (f) having made a tender to obtain a contract with the government, (i) directly or indirectly gives or offers, or agrees to give or offer, to another person who has made a tender, to a member of that person's family or to another person for the benefit of that person, a reward, advantage or benefit of any kind as consideration for the withdrawal of the tender of that person, or (ii) directly or indirectly demands, accepts or offers or agrees to accept from another person who has made a tender a reward, advantage or benefit of any kind for themselves or another person as consideration for the withdrawal of their own tender. (2) Every one commits an offence who, in order to obtain or retain a contract with the government, or as a term of any such contract, whether express or implied, directly or indirectly subscribes or gives, or agrees to subscribe or give, to any person any valuable consideration (a) for the purpose of promoting the election of a candidate or a class or party of candidates to Parliament or the legislature of a province; or (b) with intent to influence or affect in any way the result of an election conducted for the purpose of electing persons to serve in Parliament or the legislature of a province. (3) Every one who commits an offence under this section is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

122. Every official who, in connection with the duties of his office, commits fraud or a breach of trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person.