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Ontario's Liberals make legal history in Sudbury bribery trial

By throwing out the prosecution's arguments before the defence needed to even defend itself the judge showed there was much less to the case than met the eye.
Oct. 24, 2017
By Martin Regg Cohn

When it comes to political scandals, Ontario's Liberals have made legal history.

Not just not guilty. Not even close.

An extremely rare "directed verdict" from a judge throwing out the prosecution's unfounded case before the defence needed to even defend itself. Because "no reasonable jury" could possibly fathom a conviction in this three-year-old case that the Ontario Provincial Police, the opposition parties and some pundits had described as a slam dunk from the first.

And so for the first time in the 27-year history of Ontario's Election Act, a judge has said, in so many words, that the law is an ass. Especially in the hands of the OPP and Crown prosecutors who surely should have known better.

Two Liberal party warhorses - one working in the premier's office, the other a Sudbury kingpin - faced bizarre allegations of bribery and influence-peddling merely for playing politics in a local byelection. Their supposed crimes?

Persuading and dissuading.

They tried to persuade Glenn Thibeault, a star candidate from the federal NDP caucus in Ottawa, to run for the Liberals in a provincial byelection. And they tried to dissuade a local aspirant with a far dimmer star - Andrew Olivier lost in the previous general election - from fracturing party unity, instead urging him to go off quietly (because the premier would never sign his nomination papers anyway).

In a dramatic judgment delivered Tuesday, a judge tried to explain to OPP investigators and Crown prosecutors what they never learned in police college and law school:

That there's a difference between wooing and bribing a star candidate.

And that pacifying a disappointed aspirant - urging him to remain active and involved - can't be twisted into influence-peddling.

That may be too nuanced for our opposition parties, who now understand their jobs to be forever opposing everything, even if always overreaching. Smelling blood, it was the New Democratic Party that first called in the cops as part of their continuing campaign, in league with the Progressive Conservatives, to criminalize the governing Liberals.

When a judge called it all off this week, the NDP and Tories still wouldn't give up. They claimed the Liberals had gotten off on a "technicality" - if that's what you call the absurdity that the judge methodically laid out in his decision.

This was never a complicated case, despite feverish attempts by the NDP, OPP, and Crown to raise it to a higher level. Like many perceived transgressions, this one first went viral on social media, when a disgruntled Olivier revealed in a Facebook posting that he'd recorded Premier Kathleen Wynne's deputy chief of staff, Patricia Sorbara, and local Liberal activist Gerry Lougheed, offering him volunteer or paid positions if he would play ball.

It is in the nature of most Ontarians to ignore provincial politics most of the time. Even when people pay attention, it's usually from a distance.

The big eye-catching headline was Sudbury bribery. But there less to the case than met the eye.

Volunteer party jobs aren't exactly bribery. Being invited to apply for a job as a constituency assistant - which typically pays $35,000 to $45,000 a year - hardly qualifies as big money.

The tape recordings were certainly awkward, as most private conversations can be when aired in public - just ask the Tories, for example, if they'd be OK with transcripts of their own conversations being released. Out of context, anything can sound like everything, but police and prosecutors are meant to dig deeper than Facebook postings.

Instead, they laid criminal charges against Lougheed - a prominent fundraiser in Sudbury for the Liberals, but also a famously generous donor to local medical facilities - before having second thoughts and downgrading the allegations to provincial offences under the loose language of the Election Act. They also roped in Sorbara, accusing her of inducing Thibeault to quit the NDP and join the Liberals for the price of a couple of short-term jobs for old staffers that amounted to a few thousand dollars.

As I wrote last year, when the police were still in hot pursuit: "It's easy to confuse democracy with criminality, and to conflate take-no-prisoners campaigning with bribery and skulduggery. But any informed reading of the Elections Act makes it clear that it was written to guard against influence peddlers trying to pervert the course of democracy by buying off corrupt politicians, not political operators trying to recruit winning talent to their team (while ridding themselves of losers)."

By dragging it out for years, the police did undeniable damage to the reputations of Lougheed, Sorbara and Thibeault (who was never charged despite being sullied). And tarnished the Liberal party in the process.

In so doing, the OPP did the work of the NDP and the PCs - not deliberately, but inadvertently. And the Crown did a disservice to us all by failing to exercise its prosecutorial discretion to crumple up the charge sheet before their case crumbled in court.