Toronto·Analysis

Why prosecutors pursued Sudbury bribery charges, despite weak case

After a judge absolutely shredded the prosecution's lack of evidence in the Sudbury byelection bribery trial, questions are lingering about why the case was pursued.

'Politics get in the way of making decisions about charging,' says defence lawyer

Brian Greenspan, right, the lawyer for Pat Sorbara, left, speaks to reporters in Sudbury after a judge acquitted Sorbara and co-accused Gerry Lougheed Jr. on all charges of bribery. (Radio-Canada)

After a judge absolutely shredded the prosecution's lack of evidence in the bribery trial of two top Ontario Liberals, questions are lingering about why the case was pursued.

Premier Kathleen Wynne's former deputy chief of staff, Pat Sorbara, and a Liberal organizer in Sudbury, Gerry Lougheed Jr., were cleared of all charges, before the defence called any witnesses. 

"Nothing that occurred ... could, would or should be characterized as bribery," declared Justice Howard Borenstein, tossing the case in what's called a "directed verdict" of not guilty on all counts. 

Veteran defence lawyer Brian Greenspan, who represented Sorbara, called the judge's ruling a "total demonstration that these charges ought never have been brought." Greenspan told reporters in Sudbury he's seen only a handful of directed verdicts in his 44-year career. "They occur when prosecutions ought not to have been brought at the outset."

Lougheed's lawyer Michael Lacy slammed what he called a "misguided decision by the Crown to carry through with the prosecution" and said the verdict "raises questions about why they prosecuted this matter to begin with." 

Lawyer Michael Lacy, right, defended local Liberal organizer Gerry Lougheed Jr., left, on a bribery charge connected to a 2015 byelection in Sudbury. A judge tossed out all charges against Lougheed and his co-accused, Pat Sorbara. (Radio-Canada)

So, given the case was so weak a judge dismissed it, why did the Crown pursue it? Lacy offered his own answer. 

"There was a lot of political pressure," he said. "Sometimes that happens, unfortunately, when politics get in the way of making decisions about charging, making decisions about prosecuting."

Media commentators are also criticizing the prosecution as a "waste of time" and a "desultory shambles of a case." 

But it's possible that the prosecutors felt they had to pursue the case to the fullest possible extent to avoid even the slightest whiff of public perception that they were "going easy" on the two Ontario Liberals. 

Given all the publicity about the bribery allegations, in a case involving one of the premier's closest political advisers, one can imagine there might have been a public outcry had the Crown had dropped the charges before they even got to a judge. 

Alan Gold is a criminal defence lawyer in Toronto. (Mike Crawley/CBC)

In any prosecution, the Crown must make an objective, impartial analysis of the evidence to decide if a case should go ahead. The key test for proceeding is whether there is a "reasonable prospect of conviction." This is a judgment call.

Lawyers who know the system suggest that in certain high-profile cases, it may be rather difficult for the Crown to make that judgment call without being influenced by public pressure.

"I am sure, absolutely, that some concerns about public perception and the optics in the public realm played into their assessment," said Joseph Neuberger, a criminal defence lawyer in Toronto 

Neuberger said Crown attorneys will sometimes decide it's better to pursue a weak case and end up with the judge issuing an acquittal, rather than dropping the charges and potentially facing criticism for letting off the accused. 

"There`s an informal legal principle that all lawyers — Crown and defence — know called, 'Let the judge decide,'" said Alan Gold, a criminal defence lawyer in Toronto. "Whether that's your explanation or not is pure speculation."  

Ontario Premier Kathleen Wynne waves to reporters as she heads to court in Sudbury to testify in the bribery trial of her former deputy chief of staff and a local Liberal organizer. A judge tossed out all charges against the pair this week, saying no bribery occurred. (Yvon Theriault/Radio-Canada)

Gold said there may be good justifications for allowing a weak case to go all the way to court. "The public will respect a decision by a judge; they'll feel a decision by a judge is fairer than a decision by a Crown prosecutor," he said. 

The questions swirling about the handling of the Sudbury case this week even prompted the federal Crown to issue a statement defending its decision to prosecute, insisting it is immune from outside pressure. 

"The Public Prosecution Service of Canada is an independent and non-partisan prosecution authority, responsible for prosecuting offences in a manner that is free of any improper influence and that respects the public interest," said the statement.  

The federal Crown prosecuted the case, as the provincial Attorney General's office stepped aside because of its  connections to Ontario government officials. 

An artist's depiction of Premier Kathleen Wynne being cross-examined by defence lawyer Brian Greenspan in a Sudbury courtroom. Wynne was testifying in the bribery trial of two Liberal officials, including her former deputy chief of staff. (Pam Davies)

The Crown's pursuit of this case no doubt put Sorbara and Lougheed through an awful personal experience, with charges hanging over their heads, their reputations sullied by the accusations. That ought to be repaired by the judge's sweeping rejection of the Crown's case, what Greenspan calls "a total vindication, a total exoneration." 

After the verdicts, the Ontario PCs stopped airing their attack ad against Wynne that mentioned the bribery trial, said party leader Patrick Brown. 

Justice not only needs to be done, it needs to be seen to be done. Perhaps it's best for people's faith in the system that such a highly politically charged case actually went all the way to trial, so that an independent judge could weigh in with a decision that puts the whole controversy to rest.

But politically speaking, the controversy may linger in the minds of voters. 

In a poll conducted by Forum Research after the acquittals, 39 per cent of respondents said what they had heard or seen about the bribery case made them less likely to vote Liberal in the next election. 

"The Ontario Liberals could not have asked for a better outcome from the Sudbury trial, but what's clear from the data is that, overall, the result doesn't matter much," said Lorne Bozinoff, presdient of Forum Research . "The damage to the Liberals' brand may already be done."

About the Author

Mike Crawley

Provincial Affairs Reporter

Mike Crawley is provincial affairs reporter in Ontario for CBC News. He has won awards for his reporting on the eHealth spending scandal and flaws in Ontario's welfare-payment computer system. Before joining the CBC in 2005, Mike filed stories from 19 countries in Africa as a freelance journalist and worked as a newspaper reporter in B.C.