Defence in Liberals’ trial to urge case be dropped

Election Act does not apply to party’s nominating process, lawyers for pair argue

Lawyers for two Liberals accused of bribery in a 2015 Sudbury byelection — including Premier Kathleen Wynne’s former deputy chief of staff — will be back in the northern Ontario city Tuesday to argue the case should be dropped.

The unusual push for a directed verdict of not guilty by Judge Howard Borenstein comes two weeks after Crown attorneys finished laying out the prosecution and before any defence witnesses are called.

Defence counsel for Patricia Sorbara, also a key architect of Wynne’s 2014 election victory, and Sudbury Liberal organizer Gerry Lougheed say there’s no basis for the Election Act charges against the pair, who have pleaded not guilty.

They are accused of offering jobs or posts to a would-be Liberal candidate to clear the way for Wynne’s preferred choice, defecting New Democrat MP Glenn Thibeault, now her energy minister.

But the Election Act does not apply to the “private” internal process of nominating candidates for any political party — only to candidates in an election, lawyers Michael Lacy, Brian Greenspan and Erin Dann argue in a 44-page application to the Ontario Court of Justice.

“Courts should not lightly direct verdicts of acquittal,” they acknowledged. “At the same time, trial judges have a gatekeeper function separate and apart from the state’s discretion to lay a charge.”

Evidence shows Thibeault had already agreed to be the Liberal candidate before Lougheed and Sorbara were taped in conversations with offers to the would-be candidate, mortgage broker Andrew Olivier, the application says.

Sorbara and Lougheed “could not have said anything that induced Mr. Olivier in respect of an event that was not going to happen.”

Olivier had been the party’s Sudbury candidate in the 2014 provincial election but lost the riding — held for almost two decades by veteran Liberal MPP and cabinet minister Rick Bartolucci — to New Democrat city councillor Joe Cimino as Wynne gained a narrow majority across the province.

The byelection was called after Cimino unexpectedly quit five months into his term for family reasons.

“The premier appointed Mr. Thibeault. No nomination meeting was held. Neither Mr. Olivier, nor anyone else, was permitted to seek the OLP (Ontario Liberal Party) candidacy,” the defence team writes.

“Mr. Olivier’s ‘wishful thinking’ that he would be able to persuade the premier to change her mind was a product of his own self-induced misconception.”

Wynne testified at the trial that Olivier was “not as strong a candidate as I had thought” and that offers were made simply to keep him involved in the party.

In its opening statement last month, the Crown maintained that the conversations recorded by Olivier with Sorbara and Lougheed on Dec. 11 and 12 of 2014 prove he was offered jobs and appointments to exit the nomination race.

Sorbara faces a second charge of bribing Thibeault to become the candidate by offering paid campaign jobs to two of his NDP office staff.

Greenspan, representing Sorbara, said Thibeault testified she made no promise to provide paid positions “until after he decided to become the candidate.”

“To put it bluntly, the idea that Ms. Sorbara induced Mr. Thibeault to leave his role as a federal MP by promising modest one-time stipends for two staffers, totalling less than $5,000, is fanciful.”

Defence lawyers will make oral arguments on Tuesday and Wednesday, followed by the Crown. Crown attorney Rick Visca declined to release the prosecution’s written response to the defence application.

The trial is being closely watched, with provincial elections on June 7.