What is a candidate and what constitutes corruption were some of the central arguments Tuesday at the Sudbury bribery trial.
Justice Howard Borenstein heard from the defence on why the case should be dismissed, and Crown lawyers made their case for why the trial should continue. Borenstein will deliver his decision Oct. 24.
Liberal Party fundraiser Gerry Lougheed Jr. and former Liberal campaign director Patricia Sorbara are facing Election Act charges in a case that began last month.
It centres on the Sudbury byelection held in 2015. Lougheed and Sorbara are accused of attempting to bribe Andrew Olivier not to run as a candidate and support Glenn Thibeault, who left the federal NDP to run for the provincial Liberals in Sudbury.
Sorbara is also accused of offering Thibeault financial incentives to run for the party – paid campaign jobs for two of his staff.
Lougheed lawyer Michael Lacy argued that the Crown's case largely relies on the idea Olivier was a candidate as defined under the Elections Act and the Elections Financing Act.
Under the Elections Act, a person can declare themselves a candidate if they are running as an independent. While Olivier did eventually run as an independent, that announcement came after Thibeault was appointed the Liberal candidate.
Lacy said Olivier announced he was running for the Liberals on Facebook in November 2014, but that didn't make him a Liberal candidate.
“You cannot be a candidate ... unless you have the endorsement of the registered party,” he said.
Trying to argue that Olivier was a candidate because he said he was “attempts to put a square peg in a round hole.”
Allowing the Crown to extend the definition of candidate to include someone in Olivier's position goes beyond what the Elections Act says, Lacy argued. A candidate is someone running in an election, who has filed the necessary paperwork to put their name forward.
“That doesn't apply to Mr. Olivier,” he said.
By the time Olivier spoke with Lougheed, Sorbara and Premier Kathleen Wynne on Dec.11-12 in 2014, he had no chance at the Liberal nomination, Lacy said.
“The one thing everyone knew for sure, there was not going to be a contested nomination process,” he said. “They were told Mr. Thibeault was going to be the candidate.”
The Crown also relies on the idea the Liberals were trying to induce Olivier to support Thibeault because they were concerned he might withdraw otherwise. But they haven't introduced any evidence to show that, Lacy said.
“None of the evidence in this case supports that scenario.”
"The more I think about it, the more fanciful it does seem," Borenstein said.
Lacy also accused the Crown of trying to extend the Elections Act to cover how private parties determine their candidates, something Lacy said the Act was not intended to do.
Political parties are “not government actors,” he said, they are private organizations.
In his arguments, Greenspan said it's clear there was a commitment from the Liberals to Thibeault for a professionally run, fund campaign. But he said
Thibeault's questions about whether the Liberals pay campaign staff was part of a learning process about how the NDP and Liberals do things.
While he was told that it has been done before and was “doable,” Greenspan said that was in the context of a Q&A about Liberal policies, rather than a demand that his two staffers – Brian Band and Darrell Marsh – receive money.
The Crown is effectively arguing that answering Thibeault's questions about Liberal campaign policy constituted a bribe.
“It was a response to a question,” Greenspan said. “He asked certain questions, in his words, were for information gathering … It wasn't anything out of the ordinary.”
In his remarks, Crown Rick Visca said Borenstein should take an expansive view of what a candidate is – someone who declares in a public way their plans to run for office, as Olivier did. And by agreeing to pay two Thibeault staffers, that constituted a bribe.
The judge asked Visca what's wrong with someone wanting to bring people he trusts with him on a campaign, and why that should be considered a corrupt practice.
Visca replied that handing out jobs is “the currency of politics.”
Politicians in government have power over these decisions and can use them as financial incentives to secure someone's candidacy, Visca said.
Borenstein asked how that meets the definition of corruption in this case. Paid staff that they can trust seems something most candidates would want – was the Elections Act really meant to capture what happened in this case?
Visca said one of the goals of the Act is ensuring that giving out jobs should not be part of the political currency. And another Crown prosecutor, David McKercher, said that just because it's a small bribe, it's still a bribe.
“A bribe is a bribe,” McKercher said. “If it’s a small one then that will be reflected in sentencing.”
In his final remarks, Lacy said the Crown's case is built on “a house of cards,” trying to broaden the definition of a candidate beyond what's intended in the Act, and interpret the statutes beyond reason.
“These are the most convoluted, disingenuous arguments of a statute that I have ever heard a Crown articulate,” Lacy said, adding describing the arguments as an “absurdity.
“This is a very real case where people’s lives are being affected ... And it’s a house of cards. It all depends on (Olivier) being a candidate.”
It's important the judge sends a message, Lacy said, to discourage these sorts of prosecutions.
Borenstein said he would deliver his decision on the motion to dismiss the case Oct. 24 at 2:15 p.m.
