A few eagle-eyed readers have pointed out that we had unintentionally redacted a couple of sentences in the conclusion of the Justice's decision with the over-enthusiastic use of a highlighter pen. Here's the decision in its entirety, with no hard-to-read bits.
From Justice Cunningham's decision...
"The Crown submits that just because this activity is one of politics' dirty realities does not make it any less odious, indeed criminal. I agree with this submission. In short, just because it happens doesn't necessarily make it acceptable and therefore excluded from the scope of s. 121(1)(d). This section must be interpreted in accordance with its legislative purpose of safeguarding integrity, both actual and apparent."
Court has reconvened.
Michael Edelson says he's not in a position to respond to the decision today. He's asking for a scheduling meeting with the judge. He plans to let the court know by Canada Day whether the defence will call evidence. The lawyers are retiring to the judge's chambers.
on Justice Cunningham's decision to reject the defence motion for a directed verdict here.
O'Brien's lead defence lawyer, Michael Edelson has asked for a break to digest what's just happened and prepare his response.
Judge disagrees with defense on 125 as well. Motion dismissed. The trial continues.
He finds 121(1)(d) must capture political advantage. It's not looking good for the defence.
He disagrees with defence submission that the provision excludes political advantage, and simply means a monetary benefit.
Larry O'Brien has just entered the court room. The pews are full of his friends and supporters.
Alistair Steele is blogging from the courthouse. He writes...
The anticipation is building. Already there are as many cameras waiting outside the court house as we saw on on day one. No sign of O'Brien, his lawyers or the Crown yet.
This from Rebecca Zandbergen...
An interesting 'by the way' from the Gatineau Police this morning. During a follow-up phone call with Gatineau police today, I was told that the 26 year old injured in yesterday morning's shooting outside an Aylmer strip club is actually 16. The reason for the confusion? Police misread the young man's date of birth.
The other teenager shot outside Cabaret Le Pink at around 3 o'clock yesterday morning was 19 year old Daniel Valladeres. He was pronounced dead at the hospital.
This from Alistair Steele...
The big day has finally arrived. At 2:30 this afternoon, Justice Douglas Cunningham will enter court room 36 and rule on a motion by Larry O'Brien's defense lawyers to find their client not guilty, largely because the charges should never have been laid in the first place.
A number of people I've spoken with -- and at least one person I haven't -- feel the judge will side with the defense on both charges. Take our legal analyst, for example: Stephane Emard-Chabot believes on the first charge, Cunningham will rule the Crown has been too strict in its interpretation of what it means to "recommend or solicit a position," and that those discussions are, as the defense argued, "pointless and impotent" when they occur between people who are powerless to follow through on them. Emard-Chabot says on the second charge, which deals with the definition of corruption, Cunningham may take a practical approach and side with the Crown in order to avoid an appeal; but on the issue of whether or not O'Brien reaped a benefit in this case, he'll rule he did not, and reject that charge too.
So what does O'Brien think? He's not talking until after today's session, and then only if the charges are dismissed. Believe me, I've tried. But I can tell you he has been in contact with a handful of councillors and senior staffers over the past few days, and he's told them he's confident Cunningham will dismiss both charges. He's also told them just what he plans to do when he gets back to the mayor's office. Watch for quick action on LRT and Lansdowne. The timing's not great, though...council is about to break for the summer, so he may have to wait until fall.
This from Nick Gamache...
It was a close one... a very close one. Yet at the end of the day, André Cornellier is still the head of ATU local 279. The election to pick a new executive was seen as a referendum on Cornellier's leadership. A lot of drivers have been unhappy with the way he's handled the tentative "no strike/no lockout" deal with the city. Unionized workers say Cornellier has yet to explain to them why that deal would be good for them. They even forced the executive to postpone the vote on the issue until September. So the table was set this week for a changing of the guard... But that didn't happen. Cornellier was running against three opponents. If you combine the votes of those three candidates, a lot more people voted against Cornellier than for him. The final results: Cornellier 689 votes; Garry Queale 616 votes; Farah Abesteh 303 votes; and Normand Deschamps 288 votes. The opponents split the vote and Cornellier survives to fight another day. He says he's relieved he won. He knows how close the vote was (especially when you consider he got 50 per cent of the vote just three years ago). Cornellier says his next task is to explain to his fellow workers why the "no strike/no lockout" deal is a good one... Given this week's results, it looks like that won't be an easy sell.
This from west Quebec reporter Nick Gamache...
Bus drivers likely rank low in the list of people you'd want to see involved in a road rage incident. But that's exactly what happened in Gatineau last month. Both an internal investigation and one conducted by an outside investigator led the Outaouais Transit Corporation to fire a driver who had been working for them for seven years. A spokesperson would only confirm some of the details because the STO still considers the incident a human resources matter. But here's what we know: the driver was riding down Gréber Boulevard in Gatineau last month when - for an unknown reason - he apparently deliberately hit a pedestrian and kept on driving. Many passengers witnessed the whole thing. It's not clear what kind of injuries the female pedestrian suffered, but she was well enough to speak to the people who conducted the investigation for the STO and describe what happened. A spokesperson for the transit corporation says they had no choice but to fire the driver. The STO also worked with the Gatineau police service, but nobody at the force could confirm whether their investigation is still ongoing, or if charges would be laid.
It's been interesting to see the comments on the commuter cycling infrastructure story I featured earlier this week on Ottawa Morning. Many of the posted comments seem to fall on either side of the car vs bike vs pedestrian divide, which is perhaps unfortunate, because I think this is missing the bigger picture. It's unfortunate, but as long as commuters are forced to share the road, it's safe to say there will be battles for the road. I'm not saying the battles are justified and that efforts shouldn't be made to change people's attitude and behaviour, but let's not lose sight of the bigger issue here.
A bike lane shouldn't be viewed as a magic solution to solve the conflict between cyclists and motorists. Just as on-street bike parking racks won't solve the whole of problem of where to park your bike. But what these and other investments in cycling infrastructure do is, very publicly demonstrate (to everyone, including motorists) that the city is committed to incorporating bike riders into its transportation plan. Is Ottawa serious about encouraging people to leave their car at home and ride a bike to work instead? If so, then where's the money? Quite simply, Ottawa has not been funding its cycling plan. Lots of talk and plans, but no action.
Ottawa certainly isn't the first city to treat commuter biking this way. What's different in Montreal and Toronto is that municipal leaders there made cycling a priority in their transportation plans, and put some real money behind it. You can certainly argue that their motivation is by necessity, because their cities are chocked full of cars. The point is they want it done, so they're backing it up with some serious money to make it happen.
Is that still going on? Well yes, it is, but it could be all over come Friday, if Justice Cunningham decides in favour of the defence motion for a directed verdict. However if it does end, it will end Friday afternoon, and not Friday morning, as previously scheduled. Starting time Friday in court is now 2:30 p.m.
Wednesday morning on Ottawa Morning, you can hear part two of Giacomo Panico's series on commuting by bicycle in the city of Ottawa. You'll find part one by clicking here. But we have a web exclusive for readers of the Ottawa Blog. Click on the picture to see video of Giacomo taking his life into his hands by cycling down Albert Street to Lebreton Flats during morning rush hour.
This from Alistair Steele.
What's "interesting" and what's not is always in the eye of the beholder, but if you weren't among the few dozen people gathered for a panel discussion on municipal governance at Carleton University last Thursday evening, you'll have to rely on my judgement. It was called "Our Ottawa: Power and Decision Making at City Hall." The panelists were city clerk and solicitor Rick O'Connor, his deputy Leslie Donnelly, Carleton Public Policy and Administration prof Chris Stoney and Bob Brocklebank of the Federation of Citizen Associations and the Glebe Community Association. Dr. David Zussman from the Telfer School of Management was on the bill but canceled the morning of the event. Zussman also chaired the mayor's Taskforce on Governance.
The discussion coincides with something called the Mid-Term Governance Review at City Hall. It's a dense 61 pages of sober self-analysis, and council's voting on it this Wednesday. A lot of work has gone into this document, much of it by two of those panelists mentioned above, O'Connor and Donnelly. They helped draw up 10 white papers dealing with everything from how decisions are made, to who makes them. They also looked at the issue of public participation -- how your voices are not only heard, but listened too. Throw in recommendations from the mayor's task force, and you've got a new road map for "getting it done" at City Hall.
So what's new and different? One of the key recommendations in the review is to leave some of the small-time decision making -- think speed bumps and street names -- up to the Ward councillors. If Doug Thomson wants a new yield sign in Osgoode, the matter shouldn't have to rise to full council for perfunctory approval. This is what's known as "delegation of authority," and under the new governance structure, there will be a whole lot more delegating going on. The committee structure would also change, with the creation of a new and powerful Audit, Budget and Finance Standing Committee, which would do a lot of the legwork on the City Budget before it rises to council. Remember those five-day budget meetings? History. The new committee would be chaired by the mayor.
The goal, according to the review, is to give "greater authority to Standing Committees to be the final decision-maker on items within their mandate." That would seem to mean more power for committees and committee chairs, which may frighten some people...indeed, panelists and audience members at last week's event wondered aloud whether handing more authority over to smaller decision-making bodies is necessarily a good thing. But the authors of the review insist it's all about saving council from those pesky "transactional items" (again, think speed bumps and street names). And under the new structure, committee chairs, not managers, will face council to defend committee decisions.(As a side benefit, this could go at least part way to eradicating the "us vs. them" attitude that currently exists between councillors and staff, since councillors --not staff -- will have to answer for the recommendations that rise from committee).
In fact, the underlying motivation -- besides streamlining the decision-making process -- is to achieve greater accountability and transparency, according to the authors of the review. To that end, Citizen Advisory Committees --traditionally the gulag of city government -- will be given a greater voice. Advisory committee chairs will be handed the opportunity to address standing committees in an effort to ensure that matters discussed at the advisory level actually contribute to the discussion at committee. The review also calls for the city clerk to develop a new petition policy, so those long lists of signatures end up somewhere other than the shredder, And finally, the review calls for a renewed mandate for "Meetings Investigator," a little-known position filled by a man named Doug Wallace. It's his job to ensure that when council or committee retreats behind closed doors, it's for the right reasons. He's looked into a dozen complaints already this year, and he's delivered reports on three of them. Continuing that role makes sense. One hole in the review, however: there's still no recommendation for a Code of Conduct for councillors.
The Governance Review wasn't the only topic of discussion at last week's panel. (There was also a lot if talk about another topic: "Should municipal parties play a role" at City Hall?) But it was an attention-grabber, and for good reason. If council passes these recommendations later this week, it will be up to all of us to make sure these "major changes to the City's governance structure" are changes for the good.
The CBC's Giacomo Panico has an interesting two part series starting Tuesday morning on Ottawa Morning. The city has something of a reputation as a recreational cyclists mecca. But what's it like for commuting cyclists? Giacomo takes a closer look starting tomorrow morning. And if you're a cycling commuter we'd like to hear your thoughts as well.
And so this appears to be the end. The Canadian tech giant is being broken up. As of this morning, it's no longer listed on the TSX. Nokia Siemens will take over Nortel's wireless assets. It held a conference call with analysts this morning to talk about the future. Here's what Nokia Siemen's is saying about the takeover on its website. And here is its message to Nortel employees.
Discussions are continuing on the takeover of other parts of the company that are worth something. Kathleen Petty interviewed OttawaU professor Tyler Chamberlain this morning about the end of Nortel. You can hear that here.
Somewhat ironically, Nortel gets delisted on a day when Canada's Industry minister is hosting a day long forum called "Canada's Digital Economy: Moving Forward. "
We'd like to hear your thoughts on Nortel's imminent demise. What do you think it means for r and d in Canada? What do you think it means for the Canadian technology sector? Does the sector need a flagship like Nortel that spends lots of money on research and development, or does it matter? Let us know.
Alistair Steele is at today's corporate services committee meeting...
This is where local politics meet global reality, and some of the city councillors on Ottawa's corporate services committee are clearly uncomfortable with the convergence. With the photographs of horribly wounded children displayed on the large screen behind them, councillors are listening to delegation after delegation exhort them to stop hosting military trade shows on public property. Last month, for the first time in two decades, the CANSEC conference was held at Lansdowne Park. Peace activists were there, and they're here now. But some councillors seem offended by the notion that, by allowing CANSEC and similar conference organizers to lease public space, they're somehow compliant in the slaughter that's happening in the world's war-ravaged regions. Rick Chiarelli has just accused one woman of "crossing the line" by drawing a direct link between the decision here today, and the deaths of innocent civilians abroad. Diane Deans objected to one woman's comments about the Israeli-Palestinian conflict. And a clearly emotional Eli El-Chantiry, who came to Canada to escape death and destruction in Lebanon, told one delegation, "We're not promoting killing children anywhere." Unable to continue, he switched off his microphone and angrily turned his back on the man.
This from Alistair Steele...
Politicians are used to competing for media attention, but this morning Ottawa West-Nepean MPP Jim Watson really had to put on a show. Watson -- who's also minister of Municipal Affairs and Housing -- was standing at the podium outside the Lisgar Street entrance of Ottawa City Hall, where he was announcing $17.9-million dollars in provincial funding to replace aging OC Transpo buses. One of the gleaming new hybrid vehicles served as his backdrop. Watson was just seconds into his speech when there was a loud bang off to his left. Everyone but Watson turned to see a dark-coloured minivan that had just been driven over a metre-high wall separating two nearby parking lots. Neither the female driver nor the two children inside the van were hurt. The van, which was perched at a 45-degree angle, didn't appear too badly damaged. Watson later thanked reporters and camera operators for NOT abandoning his news conference to film the accident.
Your View question on the arguments at the O'Brien trial here.
More from Alistair...
More than a month after Mayor Larry O'Brien went on leave to attend his trial, his colleagues on city council still seemed a little confused about what to call his replacement, Michel Bellemare. Several times over the last hour, councillors have addressed Bellemare as "Mr. Mayor" and "Mr. Deputy Mayor." For the record, he is acting mayor until July 7th. If the trial does resume in July, Doug Thompson will take over as acting mayor.
This from Alistair Steele at Ottawa city hall...
As my colleague Rebecca Zandbergen is reporting this morning, the future location of Ottawa's new main library branch has been officially announced at city hall. There's already one concern about the new address: It's awfully close to Barbarella's, a downtown strip club. The Sun's Derek Puddicombe asked councillor Jan Harder whether she had any qualms about the new neighbour. She scoffed and asked Derek how he knew about the strip joint. Actually, because a city staffer had pointed it out to him a few minutes earlier.
take on the day's arguments for and against a directed verdict here.
If there's reason for the trial to continue after June 26th, the court will reconvene the week of July 6th.
The judge will give his decision on the defence motion for a directed verdict at 9:30 a.m. Friday, June 26th. Adjourned till then.
Larry O'Brien and his defence team are all chuckles and smiles right now. They appear very confident.
Paciocco: "We’re seeking to avoid a regime where a law leaves patronage appointments alone, but criminalizes recommending them." He says the Crown's interpretation of the law would wreak "havoc."
"I'm asking your honor to end the prosecution of Larry O'Brien. Stop the charges...there's been no crime here."
Paciocco has finished. The lawyers and the judge have retired to judge's chambers to discuss scheduling.
Just to show that he's got a poetic side, Paciocco says of Hutchison's argument: "He's pitched his boat in this storm not to a pier, but to floating jetsam."
Paciocco says the judge has to consider the public interest here. Where's the public interest in prosecuting people who have no influence on government? "Where is the risk to government...when individuals who have no influence on government engage in solicitation or negotiation?"
Hutchison has wrapped. Paciocco is asking for an early lunch to organize his thoughts. Back at 2.
on Tuesday morning at the trial of Larry O'Brien here.
There are limits to the reach of these sections. Hutchison says the law doesn't apply to "three frat buddies who sit around and talk about how they're going to give great jobs to each other when they get into government."
Cunningham: "Why not?"
Hutchison: "Because it's not a serious discussion."
Cunningham: "I don't know about that."
Hutchison: "You went to a better frat than me."
Cunningham: "I'm not so sure."
We're back from break. Hutchison is talking about the pretense of influence: "We are concerned with the reality and appearance of integrity." On the defence argument that one of the Criminal Code sections subsumes the other, "Parliament wants to have a belt and suspenders. There's nothing wrong with that." Now he's using the "Curly, Larry and Moe" example, which has become rather touchy around here.
Justice Cunningham keeps going back to the Belinda Stronach example. He wants to know the difference between that and this. Hutchison doesn't seem to want to go there. He says the floor-crossing episode is "a bit of a red herring...I've never done a non suit motion where people spend so much time talking about everything but the case."
The defence has argued that applying these sections to "political advantage" would yield "absurd consequences." Hutchison is turning that idea around on them: "To say that the only thing captured by this section is money or money’s worth narrows it to the point of absurdity. I can promise to do all kinds of favours for you in exchange for you getting me a government job, provided I don’t put a nickel in your pocket."
More on 121: "The concern of the section is not the profit, the concern of the section is the exchange…that it is wrong for people who pretend to have influence to trade on that influence. And it is the influencer that sets the price." Cunningham is breaking in frequently, asking for clarification and challenging Hutchison on some of his arguments.
The blogs and tweets are grinding to a halt...this is more law school lecture than tantalizing trial. Do we get a degree when this is all over?
There has to be a "profit component" to 121(c), but not with (d), the subsection O'Brien's charged under. Hutchison is arguing that narrow definition of (c) was never meant to be applied to (d). So under (d), the "reward, benefit or advantage" should have a wider meaning...including political advantage.
Hutchison has presented a table dissecting the two Criminal Code sections. He's especially concerned with 121(c).
"...being an official or employee of the government, directly or indirectly demands, accepts or offers or agrees to accept from a person who has dealings with the government a commission, reward, advantage or benefit of any kind for themselves or another person, unless they have the consent in writing of the head of the branch of government that employs them or of which they are an official."
O'Brien's not charged under 121(c), but Hutchison is arguing the courts have used this subsection to frame all the others, including the ones O'Brien IS charged under. So what kind of reward, advantage or benefit are we talking about here? There's no "point of reference," Hutchison says. The "organizing principal" becomes public perception. The courts have wrestled with this. "If Mr. Paciocco buys me a coffee downstairs - it's unlikely - that's a reward, advantage or benefit." He says Hinchey narrowed the definition to a reward or advantage that could "affect dealings."
It looks like Hutchison's argument will come down to the definition of "value" as it pertains to Section 121(1)(d) of the Crirminal Code. Entering the race and becoming mayor "was something that he determined had value to him…It was something that he would dedicate resources to, that he would dedicate his time to, and that he would dedicate his reputation to. It was something that he valued." Furthermore, "Mr. Kilrea represented something that was an impediment to him in achieving that goal." Hutchison says it's a "common sense assumption” that with two right-of-centre candidates in the race, both would suffer. "Getting Terry Kilrea out of the race was of value to him in his march toward becoming the mayor…he wanted Mr. Kilrea to leave the race." Hutchison says if the judge finds that 121(1)(d) only refers to monetary gain, then the defence will win. But he's about to go back to R. v. Hinchey and other case law to show it doesn't.
Here we go. Crown Scott Hutchison is on his feet. He says his arguments today won't be "artful" as Paciocco predicted yesterday. He says they will be "plodding and workmanlike." Great...
Crown prosecutor Scott Hutchison steps up to the podium in courtroom 36 this morning. He'll have to convince the court that a) those "Curly and Moe" coversations that David Paciocco talked about yesterday ARE criminal, even if neither Curly or Moe have any influence to arrange an appointment, and b) just because everyone on Parliament Hill does it doesn't make it right. He'll have to show that getting a political rival out of the way during an election campaign does count as a reward, benefit or advantage, and that the two sections of the Criminal Code under which Larry O'Brien are charged DO extend to what Paciocco calls a "prerogative of power"...political advantage. Those are tall orders. It all begins at 10.
Adjourned. Paciocco wrapped by urging the court to throw out both charges against the mayor: 125(b) because O'Brien didn't have the influence, and 121(1)(d) because the law doesn't extend to political advantage...if it did, we'd be sending most of our politicians to jail. The trial resumes tomorrow at 10 with rebuttal from the Crown.
Paciocco: "Is an increased chance of winning an election a material benefit? Seems like a hope more than anything else…An increased chance to win is not a material or tangible advantage if you end up losing...There's no evidence that Mr. O'Brien would have lost if Mr. Kilrea had stayed in. There's no evidence he won because Mr. Kilrea left. There's no evidence as to how voters actually reacted. Material or tangible benefit?"
Paciocco says the only advantage the Crown can point to is Kilrea's withdrawal. "There's no evidence upon which this court could conclude that the withdrawal of Terry Kilrea constituted a material or tangible gain or benefit. What material benefit did that produce? Nothing that is measurable…beyond a reasonable doubt.
On the accepted practice of political appointments, Paciocco says: "Many of us don’t like this. But how do you deal with it?" Justice Cunningham: "You deal with it at the ballot box. Is that what you’re saying?" That's what he's saying. Political advantage is "the prerogative of power." It permeates the whole system. It's so widespread it can't be criminalized. If you don't like it, all you can do is vote 'em out. Remember "You had a choice, sir?" A pivotal moment in Canadian politics, and this is what it was all about.
Could the current manner of appointing senators be criminal? According to Paciocco, if we include political advantage in our definition of rewards, benefit or advantage, it certainly could. Paciocco: "Even appointments to the Senate are government appointments. Everyone understands appointments to the Senate are along political lines. That’s the way it’s done."
Back to the issue of floor-crossing, a common refrain here today: Paciocco says if what O'Brien's accused of doing is a crime, "it would be a crime for government officials to offer a member of the opposition a cabinet position in exchange for crossing the floor." He says that has a "clear political advantage." I wonder if Belinda Stronach's ears are burning? Scott Brison? David Emerson? There are a few recent examples, to be sure. And it's not just the act of crossing the floor that would be a crime: The negotiations that preceded those defections would be criminal as well.
And we thought Edelson's courtroom style was dry and methodical! A 15-minute break, and it couldn't have come a moment sooner!
Enticing a rival candidate out of am election race "has no exchange value like a house or a car…it’s not something that can be valued. It’s not even a material or tangible benefit.” Some history now: The provision in question has been on the books since 1892. The clause about a "reward benefit or advantage" was added in 1953. Paciocco says the addition was "not intended to change the meaning of the provision." He points out there hasn't been a single prosecution under the provision for political advantage. "They have all been about money or economic value...The law is clear and settled."
Paciocco has quoted a Supreme Court decision warning against the "absurd consequences" of widening the accepted definition of "benefits and advantages." He says such a benefit must be "a profit, material or tangible gain." This doesn't have to be, say, a legal-size envelope full of cash. It could be a house or a car.
In describing those "pointless, impotent negotiations" between private citizens, Paciocco likes to call them "Moe and Curly conversations." Noticeably absent from the traditional trio, you'll notice, is the third stooge. What was his name again?
Paciocco says Section 121(1)(d) does not "contemplate" the reward, benefit or advantage O'Brien's accused of trying to attain; namely, getting Kilrea out of the race. Here's that section, just in case you've forgotten:
"...having or pretending to have influence with the government or with a minister of the government or an official, directly or indirectly demands, accepts or offers or agrees to accept, for themselves or another person, a reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with...the appointment of any person, including themselves, to an office."
Paciocco's pointing out the overlap in the two Criminal Code sections under which O'Brien is charged. The argument is complicated, but essentially he's saying that one requires the accused to have influence, while the other does not: It simply refers to a pretense of influence. One is therefore easier to prove, and subsumes the other. so charging O'Brien with both 125(b) and 121(1)(d) is "completely redundant. Paciocco says: "Does Mr. O'Brien have influence with anybody..." that could have led to a job on the parole board. "The evidence has been to the contrary."
Paciocco says Section 125 is about "dealing in offices," something that only members of the government can really do. He says the law is only meant to apply to people with the influence to follow through with their promises. For example, if two members of the Rhinoceros Party negotiate cabinet jobs prior to the election, do we prosecute? No, says Paciocco: The law doesn't apply to "pointless, impotent negotiations."
take on this morning's developments here.
The defence is releasing David Mitchell. The writing was on the wall anyway...Justice Cunningham didn't appear very keen on the idea. Paciocco is now dissecting Criminal Code section 125(b).
Short break, but it's not looking great for the defence's expert witness right now. Cunningham: "I don't need Professor Mitchell to tell me about the concept of patronage, the history of patronage, what it was like at the time of Sir John A. Macdonald, how it has evolved, what it is today...I don't need that from Professor Mitchell."
David Paciocco is back at the podium. His argument, once again, is that the "benefit and advantage" in the law don't include political benefit or advantage. He says the law can't be read literally, without putting it into context. That's what he's hoping David Mitchell will provide, but Justice Cunningham remains unconvinced. He seems a little impatient today.
Hutchison says the defence is willfully ignoring a key part of the relevant Criminal Code sections; specifically, the part that deals with "trading" appointments. He says he's not naive: He realizes patronage appointments are political. But he says this isn't akin to Stronach crossing the floor. He says that's recruitment, not a trade. He says what O'Brien's accused of doing - offering a job so Kilrea would drop out of the race and clear the way for O'Brien to win the election - is very different.
Justice Cunningham seems unconvinced of the need for an expert witness. He says he can take "judicial notice" (that is, he can take into account outside facts that haven't been entered as evidence) of certain Senate and cabinet appointments (think Belinda Stronach) without the help of David Mitchell. "I need to know what else the professor is going to tell me about," Cunningham says.
Justice Cunningham wants to get the question of the admissibility of the expert witness out of the way as soon as possible, so Paciocco is now making his case. He says it's important for the court to "understand the external context under which legislation was passed." The Supreme Court ruling in R. v. Hinchey will play a key role in the defence's argument.
Crown Scott Hutchison's apparently feeling left out: "Sounds like a great procedure, but I don't recall a part where I get to talk."
Paciocco says the defence team is bringing this motion with some reluctance, because it would be interpreted as an admission of Larry O'Brien's guilt. "That’s not our position. Our position isn’t that it’s okay. Our position is that it’s not criminal. What Mr. O'Brien is charged with does not even contravene these sections of the criminal code." Now Paciocco is laying out how he wants to proceed. A big part of that will be their expert witness, David Mitchell. The judge will have to rule on the admissibility of that evidence. Calling witnesses during a motion like this is unheard of.
David Paciocco says “in a system in which the prime minister and ministers make appointments to government positions, it cannot be criminal." He says they continue to refute the "factual allegations made by the Crown...but that isn’t the issue for today.” He says a motion for a directed verdict is "not brought by lawyers who are afraid of the ultimate verdict, but by lawyers who feel it’s legally pointless” to continue with the trial.
One of the realities of the TV business is that to tell a story you need pictures. Sometimes it's hard to get pictures of certain characters in the story. So there's some excitement here this morning after CBC cameraman Roger Dubois got a shot of Justice Cunningham entering court this morning. A first during the trial.
Influence-peddling, or politics as usual? That's the question the court will grapple with this morning in what could be a precedent-setting decision. Loyal readers will recall that last Tuesday, when Crown prosecutor Scott Hutchison wrapped up his case, Larry O'Brien's defence team made a rather surprising move: Rather than call their own witnesses, or (as the smart money had it) ask the judge for a directed verdict of not guilty based on a lack of evidence from the prosecution, they argued the Crown had misinterpreted the sections of the Criminal Code under which their client is charged. To put it simply, they're trying to convince the court that what O'Brien's accused of doing happens all the time in Bytown's back rooms and barrooms, and should therefore be excused as "business as usual." Furthermore, they're setting out to prove that because no money changed hands (specifically, from Kilrea's hands to O'Brien's), no crime was committed. Justice Cunningham has a big decision to make. If he rejects the motion, defence lawyer David Paciocco says he'll be "declaring the conduct of many honourable members, and indeed prime ministers of this country as criminal." On the other hand, if he dismisses the charges based on this motion, he'll effectively be ruling it's okay to offer to use one's influence, real or imagined, to induce a political rival to withdraw his or her candidacy for political office. Either way, it's a huge decision. The defence is planning to call expert witness David Mitchell, who heads Public Policy Forum, to bolster their case. We'll know soon how Cunningham will allow it to play out. The action begins in court room 36 at 10 a.m.
The defence's expert witness has been revealed. If Justice Cunningham allows his testimony,Public Policy Forum President and CEO David Mitchell will take the witness stand. Mitchell is also a former vice president of three Canadian universities, including the U of O. His wide range of expertise includes Parliamentary reform. Here's his bio.
of Tuesday's events in the trial of Larry O'Brien here.
Paciocco has handed over his evidence. "I don't have a transport truck, but I do have a banker's box." He says the actual law requires them to go back to 1892. The defence has been planning this strategy for a long, long time.
Justice Cunningham is not convinced he needs expert testimony to help him reach a decision. Either way, it looks like this trial has turned a corner. We've gone from a criminal process featuring testimony from high profile witnesses to a subtle, legal debate over dueling interpretations of the Criminal Code.
Scott Hutchison is speaking now, and raising objections to this "unique" motion. He doesn't mind breaking until Monday, but he's not keen on the idea of calling witnesses to support the request for a directed verdict. That would be unprecedented.
Court is about to reconvene. So we're going to have that request for a directed verdict, just not for the usual reason...that is, lack of evidence. Instead the defence is raising two objections to the Crown 's interpretation of the Criminal Code sections under which O'Brien is charged: First, that any "benefit" must include a financial component...in other words, that O'Brien would have had to demand money from Kilrea in exchange for an appointment; and second, that there's anything fundamentally wrong with the promise in the first place. Paciocco says criminalizing those sorts of deals would make politicans, from the prime minister on down, guilty of a criminal act.
Stephane Emard-Chabot's take on this morning's events here.
Hutchison says he's reluctant to lose time, but he's equally reluctant to take on too much in too short a time. He's asking for a "tractor trailer" to take the material home. The judge will tell the court how he'll proceed after the lunch break.
Cunningham is seeking clarity: So this is not a "no evidence" motion for a directed verdict, but one on another legal matter? Paciocco says yes, with the proviso that O'Brien never had the power to arrange an appointment for Kilrea in the first place. That takes care of one of the two charges. Hutchison is up now. He says he hasn't seen any of the material, which measures "a foot deep." It's very rare to propose evidence - especially such a large amount - on a directed evidence motion. Hutchison has been take off guard by this.
David Paciocco is outlining the defence's position. He says even if the Crown has been able to prove beyond all reason doubt that O'Brien had offered Kilrea an appointment to the parole board, conviction would be impossible. That's because higher courts have made it "crystal clear" that the concepts of reward, benefit or advantage under the Criminal Code addresses material profit only, and NOT political office. Paciocco says believing otherwise would make politicians, from the prime minister on down,guilty of a criminal offence. The defence will hand over volumes of supporting documents and call an expert witness. This will be a very complex argument. Watch for analysis from Stephane Emard-Chabot on this. He'll no doubt explain it better than I can! One thing I'm sure of...this move will take quite some time - perhaps days - to play out.
Edelson will ask for a directed verdict issue on both counts. David Paciocco will present it, likely after the lunch break.
Edelson's done. Did Reynolds talk to O'Brien about an appointment for Kilrea? Baird? Penner? No, no, and no. Hutchison is up to wrap up his case now. There's some final business to take care of vis a vis some details about evidence that was presented earlier.
The Crown's questions took just five minutes. Reynolds says he and O'Brien discussed the alleged parole board offer for Kilrea only after it hit the press. He says O'Brien told him “I may have asked you what the process was, but I never remember talking to you about Terry Kilrea, or doing anything about it.” Edelson's turn now. He says if any friend called him about arranging an appointment, he'd tell them to forward a resume and he'd take a look. He says the way Kilrea's described the process wouldn't have gotten him a job.
John Reynolds is on the stand, going over his considerable political career with the Crown.
So how did Kilrea come away from the lunch meeting with such a different version of the conversation with Pantazopoulos? "Either he had misinterpreted the conversation grossly…or he was deliberately trying to twist my words into something they were not.” That's it for the cross examination. Hutchison has a few more questions for the pollster
Did Kilrea tell Pantazopoulos about O'Brien's alleged offer to cover his campaign expenses? "I don't recall him saying Mr. O'Brien offered to reimburse his expenses." Did Kilrea tell Pantazopoulos that O'Brien had offered to arrange a job on the parole board? "No sir." Did Pantazopoulos tell Kilrea to contact John Baird? "I told him to talk to people he knew and trusted" about his political future. Kilrea had already brought up Baird's meeting at the lunch. Indeed, later that day, Kilrea sent Baird an e-mail mentioning a "big decision" he had to make. There was no mention in the e-mail of the parole board.
Detective Sargent Mason interviewed Pantazopolous in his office on April 11, 2007. Confronted with the question of the date of his meeting with Kilrea, Pantazopoulos showed him the polling data to prove it couldn't have been gathered a week before the actual date of the sit-down at the Sheraton: July 18th, 2006.
Pantazopoulos says he was "infuriated" when he read Kilrea's affidavit, where Kilrea says Pantazopoulos told him the parole board offer was "too hot to handle," and would have to be addressed after the election. "Those words are not in my lexicon," Pantazopoulos tells Edelson.
Now we're on to the July 18th lunch meeting. Pantazopoulos says Kilrea first brought up his 30-thousand dollar debt. He says it was the first he'd heard about it; he certainly hadn't discussed it with O'Brien, who learned about Kilrea's debt six days earlier.
The poll showed about 50% of the people who said they were going to vote for Kilrea were leaning that way simply because they weren't happy with the alternatives, Chiarelli and Munter. So as soon as another credible right wing candidate entered the race, that candidate could snatch half of Kilrea's support. Kilrea "had no growth," Pantazopoulos says. The poll showed Chiarelli's chances were "slim to none." Munter was "the most credible candidate," with a favorability rating of more than 50%. But his "issue set" wasn't compatible with what voters really wanted. He was, as Edelson has just re-phrased it, "out of synch" with the electorate. All this would have been very interesting to know in the summer of 2006. Right now? Not so interesting.
On the single piece of paper (there was no "brief case," as Kilrea told police) that Pantazopoulos presented to Kilrea, there was no mention of where O'Brien stood in the poll. Nor did Pantazopouls tell him. Edelson is now going into the poll results in more detail. What pollsters call "name recognition" was a big part of the survey. Even though Kilrea ran in 2003 - and did relatively well - about a quarter of respondents didn't know him. As for his favorability, Kilrea was +10%. Both Munter and Chiarelli's name recognition and "positives" were far better in mid-July. Kilrea was like "a salmon swimming up-stream," says Pantazopopulos.
Pantazopoulos shows him the poll: " “I would have indicated that I didn’t believe that he could win this race.” Did he mention his campaign finances? “He mentioned to me that he was 30-thousand dollars in debt." Did he mention a National Parole Board appointment? " He "mused" about it. "Did he ask, can you get me a career at the NPB? No. Was it implicit in the wording? Yes it was…My advice to him was that it couldn’t be done." Was there any prior discussion about an appointment with O'Brien? "Pantazopoulos says no, Kilrea's mention of it at the lunch meeting was "the first I heard about it." In a later phone call, Pantazopoulos told O'Brien about the parole board conversation. What was O'Brien's response? "I was told, we don't need him, and we should probably cut off ties with him. My sense is that (O'Brien) was uncomfortable with Kilrea at that point, and we should probably just move on."
Pantazopoulos says the poll showed that if Kilrea pulled out, his votes would "accrue to Mr. O'Brien." Hutchison asks whether he was directed by O'Brien to do anything with the results. Pantazopoulos says "it was decided to share the results with (Kilrea) in order to demonstrate that his candidacy had no legs. He can't however recall with any certainty whether O'Brien TOLD him to contact Kilrea. Nor can he recall whether he called Kilrea or whether Kilrea called him. In any event, they arranged a meeting at the Sheraton hotel on July 18th at noon. The intent of the meeting was "to discourage him from staying in the race.” Hutchison questions the timing of the meeting: Why noon? "Because that's when I eat lunch, sir." The exchange between Hutchison and Pantazopoulos is at times testy.
Pantazopoulos was a student of O'Brien's at Carleton in the late 80's. The two met a few times in between, but on July 10th or 11th, 2006, O'Brien called Pantazopolous, who then owned a polling firm called Praxicus, to gauge his chances in the 2006 mayoral race. That poll was conducted a few days later.
All rise. The first thing to catch our attention is that the usual court services officer, Ray Nadon, has been replaced. Ray's become a familiar face and something of a friend to those of us who've spent the last few weeks in court room 36. Dmitri Pantazopoulos is taking the oath.
Here we are, back in court room 36. Tory pollster Dmitri Pantazopoulos is here, waiting to testify. John Reynolds entered the building with defence lawyer Michael Edelson around 9:15. We're awaiting Justice Cunningham.
Stephane Emard-Chabot's interview with Kathleen Petty here.
Could this be the final day of the trial? Our legal expert Stephane Emard-Chabot said it's possible on Ottawa Morning a couple hours ago. If the Crown is indeed raising the white flag, it could all unfold very quickly. Rather than call witnesses, defence lawyer Michael Edelson could simply ask for a what's known as a "non suit." If the judge agrees that there hasn't been enough evidence brought forth to convict, that could be it. Of course that's just one of several scenarios. Stay tuned to find out how it plays out in court room 36 today.
On another note, there's national interest in this story once again, with former Tory MP John Reynolds set to take the stand later today.
Just had an interesting chat with Stephane Emard-Chabot, and he laid out Michael Edelson's three options after the Crown wraps up its case, which will likely happen Tuesday. Emard-Chabot suspects the Crown doesn't have enough evidence to convince the judge and get a conviction. The burden of proof is the Crown's to bear. So what will Edelson do?
1. Edelson could call his own witnesses to further strengthen the defence.
2. He could choose not to call witnesses, and move straight to closing arguments. It would then be up to the judge to render a verdict.
3. He could ask for that verdict immediately. With a jury, it's called a directed verdict. In a judge-only trial like this one it's called a non-suit. Edelson could argue that the Crown hasn't brought forth enough evidence to prove O'Brien made the Parole Board offer. If the judge agrees, it could all be over quickly...in fact, it could feasibly end Tuesday, and O'Brien's ordeal will end.
Stay tuned tomorrow for updates from courtroom 36.
take on today's events here, in an interview with Radio-Canada reporter Mathieu Nadon.
Reporters have been moved three times now, from our home in court room 36, to the more opulent setting of 37, to the other end of the hall, court room 30. We're awaiting the judge, Monique Metivier, to hear Hutchison's reason for the adjournment.
From the trial that never ceases to surprise...word this morning that Crown Prosecutor Scott Hutchison will ask for a postponement until tomorrow, when he plans to wrap up his case with just two witnesses: Tory pollster Dmitri Pantazopoulos, who met with Terry Kilrea in July, 2006, and former Tory MP John Reynolds, whose name also came up during the investigation. Both men are expected to say neither they, nor O'Brien, tried to orchestrate an appointment to the parole board for Kilrea. That would mean the Crown ISN'T calling Heather Tessier or Tim Tierney, two key witnesses who were expected to offer evidence that O'Brien DID make the offer. This all has the reporters covering this trial scratching their heads. What's the Crown's strategy, exactly? None of this has been confirmed; that'll happen shortly.
