A nearly pointless trial
Byelection bribery case falls rightly to pieces
Justice Howard Borenstein kicked the living daylights out of the Crown’s case in the Sudbury byelection trial on Tuesday, acquitting Liberal operatives Gerry Lougheed and Pat Sorbara of bribery without the defence calling evidence. The “directed verdict” means he didn’t think any Crown evidence would result in a conviction even if a jury believed it entirely — not a great look for the prosecution. Defence lawyers Brian Greenspan (for Sorbara) and Michael Lacy (for Lougheed) didn’t say whether their clients would pursue the Crown for costs, but they were otherwise inclined to orate. Both called it a “vindication.”
“This is as close in law as you can have to saying, ‘she’s innocent,’ ” said Greenspan.
“Nothing changed during this case. The evidence that was presented was the evidence that was available from the very beginning,” said Lacey. “And yet here we are, however many days later, with no case to answer for. (It) raises questions about why they prosecuted this matter to begin with.”
No kidding. I wouldn’t trust the lawyers the Crown came up with to wash my car, but they can’t have come cheap.
Sorbara, formerly Liberal campaign co-chair, and Lougheed, a local Liberal organizer, had been charged under section 96.1 of the Ontario Election Act with offering would-be byelection candidate Andrew Olivier “an office or employment to ... refrain from becoming a candidate or withdraw his ... candidacy.”
They wanted to plow the road for Glenn Thibeault, the New Democrat MP who decided to jump ship to provincial politics after NDP MPP Joe Cimino’s shock resignation late in 2014, and present a united Liberal front.
In recorded telephone calls, Lougheed encouraged Olivier to seek maximum personal advantage in return for bowing out. Olivier discussed a variety of positions with Sorbara, from internal party boards and commissions to part-time work in Thibeault’s constituency office were he to win.
Even if that amounted to bribery, the defence argued, Olivier wasn’t a “candidate” as defined in the Election Act. The judge agreed. “The definition is tied to an election, which is itself defined as an election to the (legislative) assembly,” he said. Olivier, by contrast, merely hoped to run “in an internal (party) contest to become a candidate.”
As for Olivier “refrain(ing) from becoming a candidate,” the judge again sided with the defence: By the time the events at issue took place, the Liberals had already decided Thibeault would be the candidate, either by acclamation (if Olivier fell on his sword) or by appointment (if he didn’t). “Sorbara was not speaking to Olivier to induce him to refrain from becoming a candidate because she knew that was no longer possible,” said Borenstein.
Sorbara, individually, was charged with bribing Thibeault into provincial politics with jobs for two of his federal staffers, Darrell Marsh and Brian Band. They began as volunteers on Thibeault’s byelection campaign and eventually invoiced the party for a whopping $4,800 combined.
On this point, Borenstein said a jury might reasonably infer there was a firm commitment. But he didn’t believe this was the sort of “office or employment,” or indeed the sort of “inducement,” that the Election Act intended to capture.
So that was that. Two Liberals, three charges, three acquittals — and rightly so, says I. As I’ve said before, the Crown’s desultory shambles of a case managed to shift me from thinking Lougheed and Sorbara behaved greasily, if not illegally, to thinking they had barely done anything noteworthy.
On the bright side, we have some precedent at least. This is the first time anyone has ever been charged under the bribery provision of the Ontario Election Act, which dates from 1998. Seven other provinces have similar bribery provisions in their election acts; so far as I can tell no one has ever been charged under them either.
The only mentions made of the new provision in debates at the Ontario legislature were about how everyone would surely agree it was a great idea. The next time politicians decide to tinker with the Election Act, they should get their intentions on the record. Had Borenstein sided with the Crown, he would nearly have outlawed politics altogether.