Mike Duffy's legal recourse against Harper PMO limited

It is possible that SenatorMike Duffycould find himself before the courts again soonthis time,not as defendantbut asaplaintiff seeking to recoup money lost duringhis protractedtrial.

Duffy,exoneratedon 31 charges offraud, bribery and breach of trust,lost access to his office and Senate expense account three years ago when he was suspended without pay. Hegained back his salary last summerwhen Parliament was dissolved for the electionbut remained stripped ofthe 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'sThe House."That was a suspension without pay."

He saidhis client intends to return to work at the Senate.

GillesLeVasseur, a professor of business and law at the University of Ottawa, agreed thatDuffy's first courseof actionshould be tohead over to Senate administration andsettle all his outstanding claims owedsalary, benefits (with interest)and other costs incurred that were not reimbursedwhile 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, hecould launcha civil suit against the Crown for malicious prosecution, but it's unlikely it would succeed. Duffywould have to showthatthere were noreasonable grounds to have initiated prosecution against him andno reasonable prospect ofsuccess.

He would also have to establish that he was personallysingled 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."

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In his 308-page decision, Ontario Court Judge CharlesVaillancourtlaunched a scathing rebuke against the efforts byConservativestaff members in the office of former prime minister Stephen Harper to manage the fallout from the Duffyexpense controversy.

"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."

Vaillancourtportrayed Duffy as anunwilling partner in a scheme to accept a $90,000 cheque from Harper's former chief of staff,Nigel Wright, to cover questionable but likelylegitimate expenses.

Judgment is victory enough

That said, Duffy's options for any recourse against Wright or other former political operativesare limited.He could try to sue for defamationbut wouldonly have a caseif the individuals in questionhad made slanderous or libelous comments about him outside of Parliament, where they are protected by privilege.

Privilege would also extend toanything that wassaid about Duffyduring histrialand to any submitted evidence orwritten statements.

Sometimes, inpoliticallife, you got your victory, you got a clear judgment, move on.- GillesLeVasseur, 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, becausethey weren'tnegligent, theydidn'tengage in anytortiousacts, theydidn'tsteal his stuff," said Jonathan Collings,an Ottawa-basedcivil litigation lawyer.

"They didsome things that theelectorate wouldn'tlike, and they were punished for it."

LeVasseursaid Duffy could try to get a publicapology, butthose hewould be seeking it fromwouldn'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,LeVasseursaid.

"Sometimes, inpoliticallife, 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.