A nearly three-year saga that began on a cold day in December 2014 came to a whimpering end Tuesday, when a judge acquitted Gerry Lougheed Jr. and Patricia Sorbara of all charges.
The rare directed verdict – in which a judge dismisses a case without the defence having to present its arguments – by Justice Howard Borenstein creates the first precedent for the anti-bribery laws under Ontario's Election Act.
Borenstein ruled that no jury could reasonably be expected to find them guilty of the charges. Lougheed and Sorbara were accused of trying to bribe Andrew Olivier to not be a candidate in the February 2015 byelection. Sorbara was also charged with bribing Glenn Thibeault to run by offering him income replacement and paid campaign jobs for two staffers.
In his decision, Borenstein largely focused on two things: whether Andrew Olivier could be considered a candidate under the definitions of the Elections Act, and whether telling Glenn Thibeault that the Liberals offered income replacement and paid campaign staff positions constituted a bribe.
Firstly, he said testimony, texts and emails introduced at the trial showed that Premier Kathleen Wynne had already decided Thibeault would be their byelection candidate when Lougheed and Sorbara spoke to Olivier on Dec. 11-12, 2014.
Wynne had met with Thibeault on Nov. 30 at her home to discuss whether he was willing to leave the federal NDP, resign his seat as MP and run for the Liberals. Thibeault took a week to think about it, then told Wynne that he was going to run.
At that point, Borenstein said, it was clear he was going to be the party's candidate. They hoped Olivier would support Thibeault, the judge said, but at that point, Olivier had no chance to be the party's candidate.
"That is what they all understood and believed,” the judge said.
When Olivier held his news conference on Dec. 15, 2014, to reveal that Sorbara, Wynne and Lougheed had spoken with him, Borenstein said it was “a hail Mary pass” on Olivier's part that Olivier hoped would pressure the Liberals to allow him to run.
"He knew Thibeault was going to be the candidate, but hoped he could change (Wynne's) mind,” Borenstein said. "The reality was ... there would never be a contested nomination, and Olivier would never become the candidate."
He rejected the idea Olivier could be considered a 'candidate' as defined by the Elections Act, pointing out candidates are entitled to have scrutineers at polling stations, etc., none of which applied to Olivier.
While people can declare themselves a candidate and run independently – as Olivier eventually did – Borenstein said there's no evidence that he wanted anything other than to run for the Liberals at the time he spoke with Sorbara and Lougheed.
"If the person could not possibly become the candidate, no offence can be committed," he said.
Further, he ruled that the Elections Act is intended to cover behaviour during a general election, not the nomination processes of private political parties.
On the separate bribery charges Sorbara faced, Borenstein said it's clear that Thibeault and Sorbara discussed “commitments” the Liberals made, such as a fully funded professional campaign and that the Liberals offered income replacement and paid campaign jobs.
The judge said he had to determine whether that was a bribe, and whether it was the kind of occurrence the Elections Act intended to capture.
“Bribery involves an element of dishonesty,” Borenstein said.
You must make an improper offer to someone to do something, or offer something in exchange for doing something improper. Thibeault asking whether he could bring two trusted staffers with him for the campaign seems a reasonable question, the judge ruled.
"There was nothing being offered or asked for that was improper," he said.
After taking about 45 minutes to read his decision, Borenstein announced he wouldn't be releasing a transcript of his decision, and that he wouldn't take questions from the media.
