RULING
Judge Cunningham's 24 page decision on a motion for the directed verdict really focused on the the integrity of government. He wrote at length about why both charges do apply in this case, almost entirely agreeing with the Crown's case that was presented several weeks ago.
He ruled that while O'Brien may never have had the influence to get Kilrea a National Parole Board appointment, that was really not the point. He said it was the process of negotiating that was important, not the outcome. Essentially, it was the journey that counts, not the destination. Cunningham wrote, "efforts to trade appointments-even by those who are actually impotent to act- are corrosive to public confidence in the integrity of government and are properly caught be the section."
Cunningham also ruled that a political advantage was captured by the law, that it shouldn't be limited to a material/financial advantage. He wrote that the section "is clearly aimed at preventing influence peddling in order to protect the public's confidence in the integrity and appearance of integrity of the government."
Cunningham also noted that while some patronage-based arrangements may not be covered by the Criminal Code, others that are part of ordinary government business could be viewed by the public as a breach of integrity in government officials. He said just because there are certain realities in how government conducts itself, that doesn't necessarily mean its acceptable. He wrote "just because this activity is one of politics' dirty realities does not make it any less odious, indeed criminal."
REACTION
The O'Brien camp was visibly stunned by the verdict. Before the reading there was a lot of buzz and O'Brien himself seemed quite jovial and optimistic. As the verdict was read however, the mood in the courtroom (full of O'Brien supporters) turned much more somber.
The Defence took lots of notes. After the verdict was read one of the lawyers immediately went to speak to O'Brien and his wife; Edelson then came and they went to speak in another room for 20 minutes. Outside the courtroom, Debbie O'Brien was visibly upset.
When Edelson addressed the courtroom, he was much more subdued. His voice was much quieter and almost hard to hear; something that hasn't happened before.
Edelson told the court he would need until mid week to decide how to proceed. He said he'd notify the Crown by Thursday whether witnesses would be called, and who it would be- including if O'Brien would take the stand.
Proceedings resume Monday July 6.
Monday, June 29, 2009
Wednesday, June 24, 2009
Decision Expected this Week
Judge Cunningham will be returning with a decision on the directed verdict a bit later on Friday than expected. The decision is now scheduled for 2:30 on June 26.
Tuesday, June 9, 2009
What's in a benefit?
It was the Crown's turn today to give its take on the charges that O'Brien faces. Like yesterday, previous case law was evoked and Hutchison went through various legal technicalities and interpretations that apply to both 121 and 125, though his major focus was on 121.
He had two main arguments:
1) On the issue of benefit... he said it would be ridiculous for the definition of a "benefit" to be limited to financial gain. He drew on a previous case and argued that it opens the door to all sorts of interpretations that go beyond economics. He said O'Brien sought a "direct, explicit, and concrete benefit" in Kilrea's withdrawal. He said it doesn't have to be literally tangible (like a stack of cash), rather it has to be valuable to the influencer. He argued that the influencer sets the price in terms that are valuable to him/her. So, in this case, having Kilrea out of the race was what was valuable to O'Brien, and he offered something to Kilrea so that he could gain the benefit.
2) On the issue of influence... he argued O'Brien sought out Kilrea and used his influence with senior Tory officials to get him an appointment (he reviewed a few things from Kilrea's testimony including the "what if I could make that happen" quote from O'Brien). He argued that even if O'Brien had no influence it was irrelevant to the harm that Parliament was trying to address with the law. Essentially, he argued that even impossible attempts are criminal, ie. the fact that an attempt is physically impossible doesn't make it any less of an attempt.
And just in case you were worried that Hutchison lost some of his dry humour and sarcasm while in the spotlight...
* Justice Cunningham interrupted several times to clarify and pose hypothetical questions. When he suggested that a person MUST have real authority otherwise crazy things could happen, Hutchison argued if three frat boys sat around drinking and promising each other great government jobs, the law wouldn't capture it because it wasn't serious. When the Judge suggests perhaps it was serious, Hutchison quips, "you went to a better frat than I."
* At one point Hutchison started a sentence with "Maybe I'm just a naive kid from Scarborough but..."
* In a different argument, Hutchison conjured up an example with "If Mr. Paciocco were to buy me a coffee...(pauses)... well I guess that's unlikely...."
Paciocco ended the day with a few arguments in response to Hutchison and then declares: "Stop the charges... there's been no crime here."
The Judge will return with a decision at 9:30 on June 26. If he rules for the directed verdict, the charges will be dropped. If he rules against it, the Defence will have the opportunity to call witnesses and continue with its case. It may also choose not to call witnesses and move directly to closing arguments.
He had two main arguments:
1) On the issue of benefit... he said it would be ridiculous for the definition of a "benefit" to be limited to financial gain. He drew on a previous case and argued that it opens the door to all sorts of interpretations that go beyond economics. He said O'Brien sought a "direct, explicit, and concrete benefit" in Kilrea's withdrawal. He said it doesn't have to be literally tangible (like a stack of cash), rather it has to be valuable to the influencer. He argued that the influencer sets the price in terms that are valuable to him/her. So, in this case, having Kilrea out of the race was what was valuable to O'Brien, and he offered something to Kilrea so that he could gain the benefit.
2) On the issue of influence... he argued O'Brien sought out Kilrea and used his influence with senior Tory officials to get him an appointment (he reviewed a few things from Kilrea's testimony including the "what if I could make that happen" quote from O'Brien). He argued that even if O'Brien had no influence it was irrelevant to the harm that Parliament was trying to address with the law. Essentially, he argued that even impossible attempts are criminal, ie. the fact that an attempt is physically impossible doesn't make it any less of an attempt.
And just in case you were worried that Hutchison lost some of his dry humour and sarcasm while in the spotlight...
* Justice Cunningham interrupted several times to clarify and pose hypothetical questions. When he suggested that a person MUST have real authority otherwise crazy things could happen, Hutchison argued if three frat boys sat around drinking and promising each other great government jobs, the law wouldn't capture it because it wasn't serious. When the Judge suggests perhaps it was serious, Hutchison quips, "you went to a better frat than I."
* At one point Hutchison started a sentence with "Maybe I'm just a naive kid from Scarborough but..."
* In a different argument, Hutchison conjured up an example with "If Mr. Paciocco were to buy me a coffee...(pauses)... well I guess that's unlikely...."
Paciocco ended the day with a few arguments in response to Hutchison and then declares: "Stop the charges... there's been no crime here."
The Judge will return with a decision at 9:30 on June 26. If he rules for the directed verdict, the charges will be dropped. If he rules against it, the Defence will have the opportunity to call witnesses and continue with its case. It may also choose not to call witnesses and move directly to closing arguments.
Monday, June 8, 2009
Criminal or ethical?
After almost a week, proceedings picked up in courtroom 36.
The first item of business was the question of whether an expert would be allowed to give evidence on the political and social context to the charges O'Brien faces. Paciocco agreed that calling an expert would complicate things but insisted David Mitchell would be crucial in providing the Judge with all the information he would need to make a decision. The Judge didn't think so, saying he didn't see the point of calling an expert who would come in and give examples from books he has already read himself.
The rest of the day was dedicated to Paciocco's arguments for a directed verdict. Though he gave ample examples, the arguments came down to those that he introduced last week:
* Section 125(b): O'Brien had no influence to get Kilrea an appointment. Paciocco argued that in Reynold's testimony, he said the most he could do was pass on a resume of somebody to the appropriate minister, but that he had no influence in doing more than that. In this case, Reynolds said he never received Kilrea's resume and he never did anything to further an alleged appointment... thus no one with influence did anything to exert it.
* Section 121(1)(d)(ii): Any benefit or advantage must be financial/material/tangible/economic. Paciocco argued political advantage is not caught in this charge. "There has not been a single prosecution for political advantage", Paciocco said. "What is alleged is not criminal... this is not the stuff of crimes, it's the stuff of politics." This was a major focus of the argument; essentially a question of whether it is the place of the court to regulate this type of behaviour. "It's not about whether it's acceptable, it's about whether it's criminal", Paciocco said.
The Crown will present its arguments tomorrow and the Defence will have a chance to reply. After that it will be up to the Judge to decide if he grants the directed verdict.
This is the last week that has been scheduled. After Thursday, there will be a three week break with proceedings picking up the week of July 6 if need be. What happens next will largely depend on how much time the Judge will take to make a decision on this motion. If it is allowed, the case will be over and O'Brien will be acquitted. If it is not allowed, the Defence can still make a motion for a traditional directed verdict on the basis that the Crown has not met its burden of proof (that there's a lack of evidence).
We're back at it tomorrow morning.
The first item of business was the question of whether an expert would be allowed to give evidence on the political and social context to the charges O'Brien faces. Paciocco agreed that calling an expert would complicate things but insisted David Mitchell would be crucial in providing the Judge with all the information he would need to make a decision. The Judge didn't think so, saying he didn't see the point of calling an expert who would come in and give examples from books he has already read himself.
The rest of the day was dedicated to Paciocco's arguments for a directed verdict. Though he gave ample examples, the arguments came down to those that he introduced last week:
* Section 125(b): O'Brien had no influence to get Kilrea an appointment. Paciocco argued that in Reynold's testimony, he said the most he could do was pass on a resume of somebody to the appropriate minister, but that he had no influence in doing more than that. In this case, Reynolds said he never received Kilrea's resume and he never did anything to further an alleged appointment... thus no one with influence did anything to exert it.
* Section 121(1)(d)(ii): Any benefit or advantage must be financial/material/tangible/economic. Paciocco argued political advantage is not caught in this charge. "There has not been a single prosecution for political advantage", Paciocco said. "What is alleged is not criminal... this is not the stuff of crimes, it's the stuff of politics." This was a major focus of the argument; essentially a question of whether it is the place of the court to regulate this type of behaviour. "It's not about whether it's acceptable, it's about whether it's criminal", Paciocco said.
The Crown will present its arguments tomorrow and the Defence will have a chance to reply. After that it will be up to the Judge to decide if he grants the directed verdict.
This is the last week that has been scheduled. After Thursday, there will be a three week break with proceedings picking up the week of July 6 if need be. What happens next will largely depend on how much time the Judge will take to make a decision on this motion. If it is allowed, the case will be over and O'Brien will be acquitted. If it is not allowed, the Defence can still make a motion for a traditional directed verdict on the basis that the Crown has not met its burden of proof (that there's a lack of evidence).
We're back at it tomorrow morning.
Tuesday, June 2, 2009
Square pegs in round holes
The day worked its way into a crescendo. To make things easier to follow, I've recounted them chronologically.
The last two witnesses took the stand... first it was Dimitri Pantazopoulos then John Reynolds.
Highlights from Pantazopoulos:
* He was asked by O'Brien to do some polling for him around July 10/July 11. The polls were conducted between July 13-15. They essentially showed that Kilrea was receiving a negative vote; people were going to vote for him for lack of an alternative. After a discussion with O'Brien, they decided to show Kilrea the results. When pressed by the Crown, Pantazopoulos couldn't remember exactly what was discussed during that conversation.
* He met with Kilrea on July 18 in the main dining room of the Sheraton at 12:00pm. He sat in the same chair at the same table that he had seen Jean Chretien at a week earlier. This statement prompted Hutchison to say "you must have felt special."
* He said he didn't come to the meeting with a briefcase full of polling data; that he doesn't even own a briefcase. This was in response to Kilrea's previous testimony. Hutchison didn't ask about this detail- Pantazopoulos volunteered it.
* Pantazopoulos says Kilrea told him he was $30,000 in debt, and that he indicated his real calling wasn't as mayor, but rather he mused about his desire for a position on the NPB.
* He told Kilrea any federal appointment as a "quid pro quo" would be illegal
* He says some of Kilrea's language and tone was odd... that sometimes it felt really official and not conversational
* He says after the meeting, when he spoke to O'Brien, O'Brien told him "we don't need him anyway and we probably shouldn't talk to him again."
* He says he never said the appointment was "too hot to handle" as Kilrea has testified. "Those words are not in my lexicon", he said.
* He says he told Kilrea to go speak to people he trusted about his decision to drop out of the race. He mentioned Baird's name because Kilrea had said earlier in the meeting that he had Baird's support.
* He said he was offended by Kilrea's allegations. He said he would've never risked his reputation on a "bullshit appointment for Terry Kilrea". Asked to clarify a statement he made to police, Pantazopoulos says, "I had no role in this and this was damaging to my reputation."
* When asked about Kilrea's affidavit, Pantazopoulos says, "either he misconstrued what I said or he deliberately twisted my words to something they were not."
John Reynolds took the stand for only a short time after. He testified that he didn't recall discussing a NPB appointment with O'Brien, that no one ever asked him about an appointment for Kilrea, that Kilrea's resume had never been sent to him, and that he never spoke to Baird about an appointment for anyone.
And then the legal fireworks.
It was expected the Defence would ask for a directed verdict- essentially asking the Judge to dismiss the charges due to a lack of evidence. And while this motion was made, it had a "twist". The Defence- led in this matter by David Paciocco- said it would be arguing that the charges against O'Brien should never have been made. He said even if the Crown was able to prove its case beyond reasonable doubt, it would be legally impossible to convict O'Brien. He noted that the Supreme Court has ruled that the terms "advantage" or "benefit" that are alluded to in both Section 121 and 125 mean an economical gain, not a political one as in O'Brien's case. He suggested if negotiating with someone was a criminal offence, many elected officials would be criminals because it happens all the time. As an example, he pointed to MPs who've crossed the floor for a cabinet positions. He argued "you can't argue one thing for O'Brien, and another for a member of Parliament."
Paciocco also argued the charges don't fit the situation; that it would be like putting square pegs into round holes.
The Defence plans to call an expert witness- believed to be David Mitchell, head of the Public Policy Forum. He is expected to give social and political context to these two sections of law.
Hutchison said he was concerned about this motion. He said he doesn't like the defence calling evidence on a directed verdict. When the Judge said he had never heard of it happening before, Hutchison suggested it was because it wasn't allowed. He also suggested the possibility of calling his own witness, mentioning John Baird's name.
Hutchison told the court he was glad to see the defence's submissions only date back to the beginning of European settlements in North America. He quipped he'd bring his tractor-trailer to take all the material home... in fact, the Defence has said the readings reach about a foot in height.
Proceedings pick up on Monday when arguments over the directed verdict will begin.
The last two witnesses took the stand... first it was Dimitri Pantazopoulos then John Reynolds.
Highlights from Pantazopoulos:
* He was asked by O'Brien to do some polling for him around July 10/July 11. The polls were conducted between July 13-15. They essentially showed that Kilrea was receiving a negative vote; people were going to vote for him for lack of an alternative. After a discussion with O'Brien, they decided to show Kilrea the results. When pressed by the Crown, Pantazopoulos couldn't remember exactly what was discussed during that conversation.
* He met with Kilrea on July 18 in the main dining room of the Sheraton at 12:00pm. He sat in the same chair at the same table that he had seen Jean Chretien at a week earlier. This statement prompted Hutchison to say "you must have felt special."
* He said he didn't come to the meeting with a briefcase full of polling data; that he doesn't even own a briefcase. This was in response to Kilrea's previous testimony. Hutchison didn't ask about this detail- Pantazopoulos volunteered it.
* Pantazopoulos says Kilrea told him he was $30,000 in debt, and that he indicated his real calling wasn't as mayor, but rather he mused about his desire for a position on the NPB.
* He told Kilrea any federal appointment as a "quid pro quo" would be illegal
* He says some of Kilrea's language and tone was odd... that sometimes it felt really official and not conversational
* He says after the meeting, when he spoke to O'Brien, O'Brien told him "we don't need him anyway and we probably shouldn't talk to him again."
* He says he never said the appointment was "too hot to handle" as Kilrea has testified. "Those words are not in my lexicon", he said.
* He says he told Kilrea to go speak to people he trusted about his decision to drop out of the race. He mentioned Baird's name because Kilrea had said earlier in the meeting that he had Baird's support.
* He said he was offended by Kilrea's allegations. He said he would've never risked his reputation on a "bullshit appointment for Terry Kilrea". Asked to clarify a statement he made to police, Pantazopoulos says, "I had no role in this and this was damaging to my reputation."
* When asked about Kilrea's affidavit, Pantazopoulos says, "either he misconstrued what I said or he deliberately twisted my words to something they were not."
John Reynolds took the stand for only a short time after. He testified that he didn't recall discussing a NPB appointment with O'Brien, that no one ever asked him about an appointment for Kilrea, that Kilrea's resume had never been sent to him, and that he never spoke to Baird about an appointment for anyone.
And then the legal fireworks.
It was expected the Defence would ask for a directed verdict- essentially asking the Judge to dismiss the charges due to a lack of evidence. And while this motion was made, it had a "twist". The Defence- led in this matter by David Paciocco- said it would be arguing that the charges against O'Brien should never have been made. He said even if the Crown was able to prove its case beyond reasonable doubt, it would be legally impossible to convict O'Brien. He noted that the Supreme Court has ruled that the terms "advantage" or "benefit" that are alluded to in both Section 121 and 125 mean an economical gain, not a political one as in O'Brien's case. He suggested if negotiating with someone was a criminal offence, many elected officials would be criminals because it happens all the time. As an example, he pointed to MPs who've crossed the floor for a cabinet positions. He argued "you can't argue one thing for O'Brien, and another for a member of Parliament."
Paciocco also argued the charges don't fit the situation; that it would be like putting square pegs into round holes.
The Defence plans to call an expert witness- believed to be David Mitchell, head of the Public Policy Forum. He is expected to give social and political context to these two sections of law.
Hutchison said he was concerned about this motion. He said he doesn't like the defence calling evidence on a directed verdict. When the Judge said he had never heard of it happening before, Hutchison suggested it was because it wasn't allowed. He also suggested the possibility of calling his own witness, mentioning John Baird's name.
Hutchison told the court he was glad to see the defence's submissions only date back to the beginning of European settlements in North America. He quipped he'd bring his tractor-trailer to take all the material home... in fact, the Defence has said the readings reach about a foot in height.
Proceedings pick up on Monday when arguments over the directed verdict will begin.
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