Court Information

Ontario Court of Justice (Northeast Region)

Date: October 24, 2017

Between:

Her Majesty the Queen

And

Gerald Lougheed Jr. and Patricia Sorbara

Before: Justice H. Borenstein

Heard on: September 7, 8, 9, 11, 12, 13, 14, 15, 18, 19, 20 and October 10

Reasons for Judgment released on: October 24, 2017

Counsel

V. Brewer, D. McKercher and R. Visca — counsel for the Crown

M. Lacy — counsel for the defendant Gerald Lougheed Jr.

B. Greenspan and E. Dann — counsel for the defendant Patricia Sorbara

Judgment

Justice H. Borenstein:

Introduction

[1] This is an application for a directed verdict of acquittal brought at the end of the Crown's case. A directed verdict, or non-suit, will only be granted if the Crown fails to call some evidence on each element of the offence. I look at all of the evidence called and any reasonable inferences flowing from the evidence and take the Crown's case at its highest.

[2] Ms. Sorbara and Mr. Lougheed are jointly charged with promising Mr. Olivier employment or an appointment to induce him to withdraw his candidacy or to refrain from becoming a candidate in the Sudbury by-election contrary to section 96.1(e) of the Election Act.

[3] Ms. Sorbara is also charged with agreeing to employ two of Mr. Thibeault's staff to induce Thibeault to become a candidate contrary to the same section. They are charged with committing these offences knowingly pursuant to s. 97.1 and are thereby liable to up to two years less a day in jail.

[4] I will not review all of the evidence called. I will refer to it only where necessary.

Overview

[5] By way of overview, in June of 2014, there was a general provincial election in Ontario. The Sudbury riding had been held for 19 years by the Liberal MPP Rick Bartalucci. Mr. Bartalucci decided not to run in the 2014 election and the Liberals needed a candidate.

[6] Mr. Olivier won a contested nomination and became the Liberal candidate for Sudbury in the general election. He lost to the NDP's Joe Cimino by less than 1,000 votes. Mr. Cimino became the elected member of the Legislature for the Sudbury Riding. There was a belief among Liberals that the Liberal party did not work well together in the Sudbury riding during that election.

[7] Six months later, on November 20, 2014, Mr. Cimino issued a press release announcing his immediate resignation. Pursuant to the Election Act, a by-election must be held within six months of a vacancy. The precise timing of the by-election is within the discretion of the Premier.

[8] The announcement of Mr. Cimino's resignation caught everyone off guard and excited the Ontario Liberal Party ("OLP"). They wanted a strong candidate who would win the seat back.

[9] The OLP constitution sets out the process by which a person may become the OLP candidate at an election or by-election. There are three ways: a contested nomination, an uncontested nomination also known as acclamation or by direct appointment by the leader of the Liberal party. The nomination process requires the Local Riding Association ("LRA") to submit a nomination plan to the Nomination Commissioner of the Liberal Party for approval. If the nomination is contested, more than one name is submitted on the plan. If uncontested, only one name is submitted. The Commissioner assesses the plan and may approve it with some or all of the names submitted. No form of nomination would occur if the leader chooses to appoint a candidate in a riding. There is a political cost to appointing candidates. Nonetheless, that is the prerogative of the leader within the limits imposed by the OLP constitution.

[10] With that general background, on November 21, 2014, the day after Cimino announced his resignation, Mr. Olivier issued a press release on social media saying that he wanted to become the Liberal candidate in the by-election. Given Mr. Olivier still had roughly 500 valid members signed up from the general election, he likely would have won a contested nomination if one were held quickly.

[11] On November 26th, Ms. Sorbara, Mr. Lougheed and others attended a meeting in Sudbury with Mr. Olivier, his team as well as the LRA. Ms. Sorbara was the Premier's deputy chief of staff and Campaign Director of the OLP. Mr. Lougheed was a major Liberal power broker in Sudbury.

[12] At that meeting, local issues were discussed relevant to the campaign. Of significance to this application, by the end of the meeting, no decision was made as to which of the three processes the OLP would adopt with respect to choosing a candidate in the by-election. They all agreed that they did not want any public dissension going into the by-election as had occurred in the general election.

[13] Around this same time, Ms. Sorbara, Premier Wynne and Mr. Lougheed learned that the Sudbury NDP Member of Parliament, Glenn Thibeault, was dissatisfied with the leadership of the federal NDP and was potentially open to becoming the OLP candidate in the by-election. Dominic Giroux, the president of Laurentian University and the former assistant deputy Minister of Education under Kathleen Wynne, was the source of that information. This prospect of Mr. Thibeault running for the Liberals excited the OLP leadership. They viewed Mr. Thibeault as a potential star or "blue sky" candidate. Discussions with Mr. Thibeault began.

The November 30th Meeting at Premier Wynne's Home

[14] A meeting was arranged at Premier Wynne's home on Sunday November 30th between Mr. Thibeault and the Premier to allow them to get to know each other and see if Thibeault and the Liberals would be a good fit. Ms. Sorbara was the only other person at that meeting. The meeting went well. The Premier told Thibeault that she would not appoint him immediately to cabinet if he won the by-election and Thibeault agreed. She explained that the OLP were committed to winning the Sudbury riding and therefore he would have a fully funded, professionally run campaign. By the end of the meeting, Mr. Thibeault had still not decided to leave the federal NDP but was considering the possibility seriously. He wanted about a week to think about it. He was told to contact Ms. Sorbara with any further questions. According to both Mr. Thibeault and Premier Wynne, the Premier assured him that, if he agreed to leave the NDP and run for the Liberals, he would be the OLP candidate and would not have to face a contested nomination. He would either be acclaimed or, failing that, the Premier would appoint him as the candidate. Both "preferred" an acclamation for political reasons.

[15] Both Premier Wynne and Thibeault testified that they kept Mr. Lougheed in the loop.

[16] Between November 30 and December 11th, Mr. Thibeault was still considering his decision. He was speaking to Lougheed, Sorbara, Giroux and others.

[17] On December 3rd, Thibeault told Giroux about his meeting with the Premier. Mr. Giroux sent a text to Pierre Cyr, a senior staffer in the OLP saying that he had spoken to Thibeault who still had some concerns which Giroux listed intermingled with his own advice and opinion. Of relevance to this application, Giroux wrote that Thibeault should be given a cabinet position and "would insist on a (short) open nomination and would only do [so] if Andrew Olivier pulls back". Giroux testified that his text summarized his discussion with Thibeault. Thibeault testified that he told Giroux some but not all of the things Thibeault summarized in the text. When asked if he told Giroux about an open nomination only if Olivier withdrew, he replied "sure".

[18] Cyr forwarded Giroux's text to Ms. Sorbara who wrote to Giroux stating that the text did not reflect the understanding reached between Thibeault and the Premier on November 30th. Ms. Sorbara forwarded Giroux's text to Tom Teahan, the Premier's Chief of Staff, telling him the same thing and noting that the comment about Olivier pulling back suggested Thibeault would not accept an appointment. She asked Teahan to respond to Giroux telling him that this was "old style politics", the Premier did not work that way and that they wanted to help Thibeault reach a decision to run without the commitments outlined in Giroux's text.

[19] Giroux testified that Teahan called him and firmly told him there would be no offer of a cabinet position. Giroux then received a call from Ms. Sorbara asking if Thibeault was still interested in running in light of Teahan's call. Giroux did not know. Giroux had no further conversations with Sorbara or Teahan.

[20] Thibeault testified that he had discussions with Ms. Sorbara during this period. He asked whether two of his staff could be given paid jobs on the campaign. He trusted them. They were loyal to him and they knew the situation on the ground in Sudbury. Mr. Thibeault was worried about a negative reaction to what he called the "switch factor". Thibeault knew that it was possible to have paid campaign staff in the NDP but did not know whether that was possible in the OLP. Mr. Sorbara said that had been done in the past and that it was or could be "do-able".

[21] On December 11, Mr. Thibeault called Ms. Sorbara and told her he decided to leave the NDP and become the Liberal candidate in the by-election. He spoke briefly to Premier Wynne. He then called Mr. Lougheed and told him as well. Thibeault testified that, after his call to Sorbara, he understood that he was the candidate, whether through acclamation or appointment. He wanted to tell Olivier personally but Sorbara said that was her job.

[22] A few hours later, Thibeault emailed Ms. Sorbara. He referred to some local issues relevant to the campaign and his preferred date for the announcement of his candidacy. His email concluded: "At some point, I would also like to go over the commitments that were made. I don't need them in writing or anything like that….I would like to discuss face to face and then shake on it….I am still a believer in someone's word and a handshake as a form of agreement."

[23] Ms. Sorbara replied to the email. With regard to Thibeault's last comment, she wrote: "And certainly no problem walking through the commitments again to ensure a clear understanding between you and the Premier".

[24] In his testimony, Mr. Thibeault was asked what those commitments were. There were several however, taking the Crown's case at its highest, he said they included paid jobs for his two staff which Ms. Sorbara said would or could be "do-able".

[25] The two staff members, Band and Marsh, testified that they supported and were prepared to follow Thibeault to the Liberals. They said there was no discussion about being paid before doing so. They initially joined the campaign as volunteers. Around New Year's, Thibeault told Marsh he would see if he could get a stipend for him. Marsh received $2,000.00, Band gave essentially the same evidence. Toward the end of the campaign, he recalled that Thibeault or someone else say he should submit an invoice. Band received $2,800.00.

The Recorded Calls

[26] I will not repeat the content of the two recorded conversations in detail. They are exhibits in this trial.

[27] On December 11th, when Lougheed learned that Thibeault committed to running for the Liberals, he called Mr. Olivier and arranged to meet him. Mr. Olivier audio recorded their conversation because paralysis prevented him from being able to write notes. Neither Mr. Lougheed nor Ms. Sorbara knew they were being recorded.

The December 11th Conversation Between Mr. Olivier and Mr. Lougheed

[28] Mr. Lougheed entered Mr. Olivier's office and got straight to the point. He told Olivier he was there to have a significant conversation. He told him that, as of that morning, Thibeault had decided he would run for the Liberals in the by-election. He told him an acclamation was important to Thibeault and he was there on behalf of both the Premier and Thibeault to ask Olivier if he would consider stepping down and nominating Thibeault. It was in that context that he spoke of the Premier wanting to talk to Olivier and present him with "appointments, jobs, whatever that you and she and Pat Sorbara can talk about". Lougheed told Olivier that he should speak to the Premier directly. He arranged a call between the two for shortly after he left. Olivier was shocked yet composed. He was not convinced that he should step aside. He wanted to run. Lougheed initially said that he told the Premier and Ms. Sorbara that, if Olivier wanted to keep going, they would have to respect that and began speaking about what a big opportunity Thibeault's candidacy was for the Liberals. Lougheed said that, if Olivier goes along with this but says he, in turn, has to be guaranteed a future in what is going on, Lougheed thinks they should give it to him. Lougheed then said, if Olivier told him he wants to run, then "guess what, we'll have a full blown thing". He immediately followed up by saying: "I don't—I shouldn't say that, because I can't say that. I will retract that. The Premier up till now has always said to me she's in favour of a nomination process. So I want to make that really clear. She never said to me, I'm going to appoint him. And to be fair to Glenn, Glenn has never said I want to be appointed".

[29] The conversation continued with Lougheed telling Olivier that he will have to make his decision but, if he steps aside and nominates Thibeault, he should ask what is in it for him, his reward. He said the Premier thought Thibeault was a miraculous candidate and that, if Olivier does not step aside, the Premier may go with an appointment and he should talk to the Premier about that.

[30] Lougheed left and the Premier called Olivier. That conversation was not recorded. Both Olivier and Premier Wynne gave evidence about that call. Olivier also spoke to the Chief Electoral Officer about that call in January 2015.

[31] Olivier testified the Premier told him that it was her vision that Thibeault would be the candidate with Olivier working alongside and that she wanted him to continue to have a role within in the OLP. He testified that he did not believe the Premier had made up her mind that Thibeault would be the candidate or that she foreclosed the possibility of a contested nomination. She did not say she would appoint Thibeault. He was then shown his statement given to the Chief Electoral Officer where he said that the Premier made clear that Thibeault would be the candidate. He said he was hoping to change her mind. He agreed that he was aware, after speaking to Ms. Sorbara, that there would be no contested nomination.

[32] Premier Wynne testified that once Thibeault agreed to run, she had determined that he would be the candidate. She wanted the Sudbury riding to work together and hoped Olivier would be onside. She was aware that although Lougheed had reached out to Olivier, there was still uncertainty about Olivier's position. She then called Olivier and told him she wanted him to stay involved and that it would be great if he were onstage with Thibeault. She made clear that Thibeault was going to be the candidate, if not by acclamation, then she would appointment him. Sorbara was in the room at the time. She did not feel Mr. Olivier was fully understanding. By the end, it was not clear what he would do.

The December 12th Recorded Call Between Ms. Sorbara and Olivier

[33] Ms. Sorbara called Mr. Olivier on December 12th. He told her he still wanted to seek the nomination. She replied stating that "of course you recognize the position that we're going to find ourselves in here, right, where she's going to have to make a decision around the appointment, right, versus letting this go ahead". Ms. Sorbara then tried to explain the importance of Thibeault to the party and the election, party sacrifices, long term benefits, Olivier remaining in the party with a significant role but Olivier still was not sure what he would do. She told him the Premier felt very strongly about this and, if Olivier did not agree, that would "force the Premier to move to the appointment process if that's the only option available to her to move this forward". Olivier replied that he wanted to be the candidate. Sorbara asked if he believed that, if he would not step back, the Premier would agree to a contested nomination. He said he would hope she would factor that into her decision. Sorbara spoke more about party politics and sacrifices for the party. She spoke about how they wanted him to stay involved in the party. He said he would let her know.

[34] Before moving to the legal issues on this application, for completeness, I add the following relevant dates:

December 15th — Andrew Olivier makes a public statement indicating that he would not be bought or bullied by the Liberals to step aside.

December 16th — Premier Wynne announced that Mr. Thibeault was the OLP candidate.

January 5th — Thibeault resigns from the House of Commons.

January 7th — the writ is dropped for the Provincial by-election.

January 16th — Mr. Olivier declares he is an independent candidate and runs in by-election.

February 5th — by-election occurs. Mr. Thibeault wins.

Issues on the Application

[35] Turning now to the issues on the non-suit. Beginning with the joint charge.

[36] They are jointly charged with corruptly offering or promising employment or an office to Mr. Olivier to induce him to withdraw his candidacy or to refrain from becoming a candidate.

[37] No counsel raised the issue of whether the offences as charged were committed in a non-corrupt fashion. The charges as laid, the manner in which the trial proceeded, as well as counsels' facta and submissions, proceeded on the basis that the offences alleged were alleged to have been committed knowingly and corruptly, as one delict. I proceed on that basis as well.

[38] There are three elements to this offence. That either or both, directly or indirectly:

1. promised an office or employment to Mr. Olivier
2. in order to induce him;
3. To withdraw his candidacy or to refrain from becoming a candidate.

[39] The Crown must lead some evidence, direct or circumstantial, on each of these elements. The issue on a non-suit is not whether that evidence is persuasive. To the extent that there is circumstantial evidence in this case, I must weigh the evidence in the limited manner described in R. v. Arcuri (2001), 2001 SCC 54, to determine whether on the whole of the evidence, the evidence is capable of reasonably supporting the inferences sought by the Crown.

[40] Ultimately the question to be answered is whether, based on the evidence and reasonable inferences that flow from the evidence, a reasonable jury, properly instructed, could convict either of any of these charges.

[41] The Applicants, for the purposes of this motion only, are prepared to concede the first two elements; that they promised an office or employment to Mr. Olivier and they did so for the purpose of inducing him to do something.

[42] However, and this is the nub of the argument, they submit that, on the evidence, he was not a candidate as defined in the Election Act. They submit the Act applies to candidates at an election to the Legislative Assembly, not the internal processes by which private groups, including political parties, select who will become the candidate. Accordingly, they could not reasonably be found guilty of improperly inducing Olivier to withdraw his candidacy.

[43] With regard to refraining from becoming a candidate, they submit that, on the evidence, once Thibeault agreed to run, which was before the impugned calls to Olivier, it had been decided that Thibeault would be the candidate, through acclamation or appointment. Olivier could never become the candidate. There was not going to be a contested nomination. Therefore they could not induce him to refrain from becoming the candidate. Even if they could be said to have done so, they submit that the Act governs elections to the Assembly and not the internal processes by which parties select who will become the candidate.

[44] The Crown urges a broader interpretation of the term "candidate" given the public interest underlying the Election Act. With respect to "refraining from becoming" a candidate, the Crown submits that it was possible that things would have played out differently than they did and that Mr. Thibeault could have chosen not to become the OLP candidate if Olivier did not step down. Therefore, Mr. Olivier still may have become the candidate in a contested nomination. I should not look at how things actually played out but that, at the time, things may have played out differently than they did.

[45] Both sides submit that no one has before been prosecuted under this section and it has never been interpreted by a Court. Further, section 96 was enacted in 1998 without any debate. There is nothing in Hansard or the record that could assist.

Who is a Candidate

[46] I begin with the meaning of candidate within the Election Act. The Election Act defines "candidate" as follows:

Candidate at an election" and "candidate" mean a person elected to serve in the Assembly and a person who is nominated as a candidate at an election or is declared by himself or herself or by others to be a candidate on or after the date of the issue of the writ or after the dissolution or vacancy in consequence of which the writ has been issued.

[47] The Act also defines "election". "Election means an election of a member or members to serve in the Assembly.

[48] Therefore, one can be a candidate for the purposes of the Election Act in three ways:

1. If elected to the Assembly;
2. If nominated as a candidate; or
3. If one declares him or herself, or is declared by others, to be a candidate after the date of the issuance of the writ or after the dissolution or vacancy

[49] Mr. Olivier was not a candidate under the first two categories. If he was a candidate, as the Crown contends, it must be under the third category; that he declared himself to be a candidate. I note that Olivier never declared that he was a candidate running in the election at the time of these alleged offences. He announced that he intended to seek the nomination to become the Liberal candidate. He was careful in his evidence to distinguish between being a candidate and seeking the nomination to become the candidate. He understood there was a difference. He testified that he never was the Liberal candidate. He also testified that he knew he had to file documentation with Elections Ontario if he intended to run as a candidate, something he did when he decided to run as an Independent after these alleged offences occurred.

[50] The Applicants submit that the third category applies to Independents running in an election.

[51] By contrast, the Crown submits that the three categories of candidates span a temporal spectrum offering protection from the moment someone publicly declares that they want to become a candidate. The Crown says that Olivier was a candidate for the purposes of the Act based on this broader interpretation of the Act.

[52] The modern approach to statutory interpretation is well established. One has to interpret the words of a statute harmoniously in accordance with the purpose of the provision and context of the act. The words are to be given their ordinary meaning but in accordance with the act's purpose (see Rizzo & Rizzo Shoes Ltd. (Re), at paragraph 21, and following).

[53] I disagree with the Crown's submission that Olivier was a candidate for several reasons.

[54] First, "Candidate" and "Candidate at an Election" mean the same thing. The term candidate is a short form for candidate at an election.

[55] The definition is tied to "Election" which is itself defined as election to the Assembly.

[56] One who seeks to become a party's nominee is not running in an election to the Legislative Assembly. He or she is running in an internal contest to become the candidate.

[57] The Act deals with elections to the Assembly, not elections held by private organizations or parties. It prescribes dates for elections, residency requirements, requires time off of work to vote, prescribes what must be on a ballot, dates for the issuance of writs, duties upon the Chief Electoral Officer to name but a few. It cannot reasonably be suggested that all of these requirements are meant to apply to and regulate the internal elections of private groups.

[58] The definition proposed by the Crown would extend the scope of the term candidate in the Election Act beyond which, by its structure and content, it purports to regulate; namely, elections to the Assembly. It would lead to absurd results to both elections to the Assembly and internal elections of private organizations, including political parties, given the issues just identified and the rights that enure to candidates as provided for in the Act.

[59] For example, candidates are entitled to have scrutineers at the polls during an election. It would be unwieldy and unworkable to have all those who sought and lost a party's nomination battle to have scrutineers at the poll of an election to the Assembly. Further, there would be no purpose to afford these rights to that group of persons.

[60] Likewise, s. 19(3) of the Act requires the Chief Electoral Officer to provide voter lists to candidates. There would be no point providing such lists to those seeking the nomination to become a party's candidates.

[61] Again, section 47(2)(1)(b) allows for a candidate or his or her scrutineer to require a voter to make a statutory declaration if that candidate or scrutineer believes the voter is misrepresenting him or herself. It would be absurd to think that every person who failed to win a nomination battle could force voters at an election to the Assembly to make statutory declaration.

[62] The same rationale applies to section 65 which requires the deputy returning officer to count the ballots cast in the presence of the candidates or their scrutineers if present.

[63] Section 69 which requires anyone applying for a recount to give notice in writing to the Chief Electoral Officer, the returning officer, election clerk, and each candidate.

[64] Finally, the same reasoning applies to s. 73(3) which provides that each candidate and his or her counsel are entitled to be present on a recount.

[65] Indeed, in submissions, the Crown could point to no other provision in the Election Act that could possibly apply to anyone who was running in a contested nomination to become a candidate.

[66] In addition, the Election Finances Act, which is a related Act, was recently amended and specifically distinguishes between "candidates at an election" and those running in a contested nomination. While that Act was only recently amended, the previous version of the Election Finances Act, which was in place at the time of these alleged offences, specifically provided that it did not apply to contested nominations. The Legislature therefore was aware of the distinction between candidates at an election and those running in a nomination to become the candidate.

[67] For these reasons, namely, the wording of the definition of candidate in the Election Act, its purpose, the other provisions of the Act which apply to candidates and the Election Finance Act, I conclude that "candidate" in the Election Act does not include those who are seeking a party's nomination to become a candidate.

[68] I find that the third category of candidate, declared candidates, refers to candidates running in an election to the Legislative Assembly. It does not extend to those running to become a candidate. This interpretation affords the protections, rights and obligations of the Act to all those who are actually running in an election as defined by the Act, but no further. Accordingly, Sorbara and Lougheed could not be found guilty of inducing Olivier to withdraw his candidacy as he was not a candidate.

Could Sorbara or Lougheed Be Found Guilty of Inducing Olivier to Refrain from Becoming a Candidate

[69] The Applicants submit that, when Lougheed and Sorbara spoke to Olivier, Thibeault had already agreed to become the Liberal candidate. At that point, he was going to be the candidate either through acclamation or appointment. There never was going to be a contested nomination in which Olivier could become the candidate. The Applicants could not induce someone to refrain from becoming something he could never become. The Applicants further submit that, even if they could, the Act has no application to internal party processes by which they choose who will become their candidate.

[70] The Crown submits the Act does apply to internal party nominations contests.

[71] The Crown does not seem to take issue that impossibility would be a bar to a conviction but argues it was still possible that Olivier could have become the Liberal candidate even after Thibeault agreed to run. The Crown submits that it was possible that Thibeault would have declined to accept an appointment if Olivier did not withdraw and support him. The Crown says I should not consider what actually happened following Olivier's December 15th announcement, namely, that the Premier appointed Thibeault who accepted the appointment, but I should consider the state of affairs that existed when Sorbara and Lougheed spoke to Olivier. The Crown relies on Giroux's December 3rd email.

[72] With those positions in mind, I turn to the issue of whether a reasonable jury, properly instructed, could convict either defendant of inducing Olivier to refrain from becoming the Liberal candidate.

[73] The purpose of the inducement is an essential element of the offence. It must be to induce the person to refrain from becoming a candidate. The accused's intention or purpose can be inferred from all the circumstances. Candidate refers to candidate at an election.

[74] This offence presumes the person being improperly induced is not yet a candidate but could possibly become one when the offence is committed. If the person could not possibly become a candidate, the offence could not be committed. One cannot be convicted of inducing someone to refrain from becoming something that they could not possibly have become. There is no longer a relevant distinction between legal and factual impossibility. (United States of America v. Dynar)

[75] By the time Lougheed and Sorbara spoke to Olivier in the recorded conversations, Mr. Thibeault had committed to run as the OLP candidate. Once Thibeault committed, the only reasonable inference on the evidence is that Thibeault was going to be the candidate. There would never be a contested nomination and Olivier could never become the Liberal candidate. If Thibeault were not acclaimed, the Premier would appoint him and he would have accepted. That is the only reasonable inference in this case. The Premier assured Thibeault of that and Ms. Sorbara was at that meeting. Mr. Lougheed was kept in the loop. That is what they all understood and believed. Thibeault was not asked to and would not give up his position as a sitting Member of Parliament if he had to then face a contested nomination to become the candidate. While he preferred an acclamation, on his and all the evidence, the only reasonable inference is that he would have accepted an appointment if he were not acclaimed. That was the understanding reached on November 30th. The December 3rd email, when considered in light of all the evidence, including that understanding, the evidence of the Premier and Thibeault as well as all Thibeault was giving up, does not permit a reasonable inference that Thibeault would only accept on an acclamation.

[76] While Mr. Olivier may not have appreciated that there would be no contested nomination, or believed his "hail mary" public announcement of December 15th might have changed the Premier's mind, that was simply not the case. His hope does not make it a reasonable possibility. I do not say that to criticize Mr. Olivier. I found him impressive both in the conversations that were recorded and as a witness. But, once Thibeault agreed to run, which was before the impugned conversations, there was no longer a possibility of a contested nomination and Olivier could no longer ever become the Liberal candidate. Olivier testified that, after he spoke with Ms. Sorbara, he knew there would be no contested nomination. He told the Chief Electoral Officer that, after speaking to the Premier on December 11th, he knew that Thibeault would be the candidate but he hoped to change the Premier's mind.

[77] So it became impossible for Olivier to become the OLP candidate when Lougheed and Sorbara spoke to him. That is enough to resolve the non-suit. However there is more. This impossibility also sheds light on the purpose of the inducement.

[78] The Liberals wanted and were inducing Olivier to step aside for party unity, or the appearance of unity, or for optics and so that they would not have to appoint Thibeault. Sorbara was not speaking to Olivier to induce him to refrain from becoming a candidate as she knew that was no longer possible. She could not be said to have induced him to refrain from running in a contested nomination that she knew would never occur. Thibeault, the Premier and Ms. Sorbara all knew the Premier would appoint Thibeault if he were not acclaimed. Lougheed probably did as well as he was kept in the loop although there is a competing reasonable inference that he did not know based on what he said to Olivier. But, for reasons already given, regardless of what Lougheed knew when he spoke to Olivier, the reality was, and the only reasonable inference is, that there would never be a contested nomination and Olivier could never become the Liberal candidate. Premier Wynne, as leader of the Party and the one with the power to do that, had already decided that would happen if there was no acclamation.

[79] So, as it relates to both Ms. Sorbara and Mr. Lougheed, a reasonable jury, properly instructed, could not convict either of seeking to induce Olivier to refrain from becoming a candidate as that was no longer a possibility. They could not be found guilty of inducing someone to refrain from becoming something that could not happen.

Count #2 - Inducing Improperly Glenn Thibeault to Become a Candidate

[80] The Crown alleges that Ms. Sorbara agreed to Mr. Thibeault's request to employ two members of his staff on the campaign in order to induce him to become a candidate. The Crown alleges that this was bribery and corruption. The two did work on his campaign and, together, received about $5,000.00.

[81] Mr. Thibeault wanted Band and Marsh to work on his campaign. He trusted them. They knew the ground situation in Sudbury well and would be valuable in the campaign. While he was concerned that they would be laid off when he resigned, that concern abated substantially before December 11th when he learned they were entitled to severance from the House of Commons. Mr. Thibeault had been assured that, if he agreed to become the candidate, he would have a fully funded, professionally run campaign. He asked if his two staff could be given paid positions in the campaign. Ms. Sorbara said that had been done that in the past and it would or could be "do-able". Band and Marsh were unaware of Thibeault's request and would have joined Thibeault's campaign regardless.

[82] Mr. Greenspan submits there was no agreement to pay the two men until after Mr. Thibeault agreed to become a candidate and therefore there was no inducement. Further, he submits that it is fanciful to suggest that Thibeault would leave his position as Member of Parliament due to this alleged agreement.

[83] I find that the evidence permits a reasonable inference that Ms. Sorbara did agree to Thibeault's request to employ the two men on the campaign and this agreement occurred prior to Mr. Thibeault's agreeing to run as the candidate. Thibeault's December 11th email to Ms. Sorbara spoke of "commitments" that were made. That, together with his evidence in chief explaining that those commitments included paid jobs for his staff, led to a reasonable inference that Ms. Sorbara agreed to employ the two men and that induced Thibeault. An inducement does not have to be the sole cause that persuades.

[84] However, this still begs the question whether this section was ever intended to capture an agreement of this sort.

[85] I have already referred to the modern approach to interpreting legislation from Rizzo which bears repeating:

"The modern approach to statutory interpretation is to interpret the words of a statute harmoniously in accordance with the purpose of the provision and context of the act. The words are to be given their ordinary meaning but in accordance with the act's purpose".

[86] The words of s. 96.1 as it relates to the case against Ms. Sorbara, provide that no person shall, directly or indirectly, promise or agree to procure employment to induce a person to become a candidate.

[87] Those words appear broad enough to capture this agreement. However, the words must be interpreted in their context, harmoniously with the other provisions of the Act and in accordance with the purpose of the Act, to determine their scope.

[88] I start with the purpose the Election Act. The Election Act's purpose is not expressly stated. However, the Crown, in its factum submits rightly that:

"The Act promotes transparency and prohibits corrupt practices including bribery (s.96.1). In the context of bribery, the mischief obviously lies in the intent to subvert the process by secret deals. Corruption distorts the electoral process, altering the landscape upon which citizens are assured that they can play an informed and meaningful role" (Crown factum para 56).

[89] At bottom, election acts are about ensuring fair elections. In Del Mastro, dealing with the Federal Elections Act, the Ontario Court of Appeal held that the primary purpose of the Act "is to ensure that elections are fair and democratic and that all Canadians have a fair and equitable chance to be heard and elected" (R. v. Del Mastro, 2017 ONCA 711)

[90] Turning to this case, I cannot see how agreeing to employ two qualified and trusted staff to work on a campaign by-election offends in any way any purpose of the Election Act as just mentioned, or the mischief the section is meant to address or indeed any valid principle.

Turning Now to s. 96.1 in Context

[91] Sections 90 through 98 are grouped under the heading "Corrupt Practices and Other Offences".

[92] S. 96.1 itself appears under the heading "Bribery".

[93] Headings in a statute can assist in determining the legislative intent (see Re African Lion Safari & Game Farm Ltd. and Kerrio et al.)

[94] This is indeed an allegation of bribery.

[95] In the Crown's opening sentence of its factum, it writes that "Ontarians rightly abhor any corruption". This case has been replete with allegations of bribery. The Crown's factum repeats those allegations.

[96] "Bribery" is not defined in the Act. It has received little judicial consideration. However, Justice Hill, in R. v. Lam, 2014 ONSC 5355, in sentencing Lam, a drug dealer, for offering a bribe to police officers, wrote (paragraph 13):

The common law definition of bribery, which informs the statutory definition, was recently described in R. v. J.D.V. and S., [2013] EWCA Crim 2287, at para. 10

"At common law, bribery and corruption were criminal offences. A single definition is not easy but the general principles are set out in Russell on Crime (12th ed) 1964, p. 381 in the following terms,

Bribery is the receiving or offering of any undue reward by or to any person whatsoever, in order to influence his behaviour in an official situation and incline him to act contrary to the known rules of honesty and integrity."

[emphasis added]

[97] Section 46 of the Legislative Assembly Act, R.S.O., 1990, c. L.10, lists offences over which the Legislative Assembly has the power to punish including bribery.

S. 46 reads:

[98] Bribery and offering of fee

Offering to, or the acceptance by, a member of the Assembly of a bribe to influence the member in his or her proceedings as such, or offering to or the acceptance by a member of any fee, compensation or reward for or in respect of the drafting, advising upon, revising, promoting or opposing any bill, resolution, matter or thing submitted to or intended to be submitted to the Assembly or a committee thereof [emphasis added]

[99] Black's Law Dictionary, 10th edition, defines bribe as:

A price, reward, gift or favor given or promised with a view to pervert the judgment of or influence the action of a person in a position of trust. The core concept of a bribe is an inducement improperly influencing the performance of a public function meant to be gratuitously exercised.

[emphasis added]

[100] The unifying thread to these definitions of bribery is that bribery involves some element of dishonesty. It is improper conduct which inclines someone to act dishonestly, unethically or improperly.

[101] The other offences contained in s. 96.1, for example, paying someone or giving them a job to vote or refrain from voting, would fit this meaning and would be understood to be bribery.

[102] Looked at in its context, and purposively, nothing that occurred in relation to this count could be characterized as bribery. The agreement was to provide staff for the campaign. There was nothing dishonest in this agreement. There was no undue reward. There was nothing secretive or clandestine. There was nothing being asked for or offered that was unrelated to staffing a campaign office. Nothing in the conduct offends the purpose of the Act, the mischief the Act and section intended to address and does not amount to bribery in any reasonable definition of the offence. A reasonable jury, properly instructed, could not convict Ms. Sorbara of bribery under s. 96.1.

[103] Beyond that, the charge as laid, is that Ms. Sorbara committed the offence of bribery and did so "knowingly" thereby committing a corrupt practice.

[104] Sections 96.1 and 97.1 are awkwardly worded at best.

[105] The prohibited act in section 96.1 is, bribery, a term which, for reasons just expressed, itself connotes dishonesty and corruption. S. 97.1 provides that if the bribery offence is committed "knowingly", that constitutes a corrupt practice attracting increased penalties. It is this combined offence with which Ms. Sorbara has been charged and which the Crown must call some evidence reasonably capable of supporting a conviction.

[106] Whatever "knowingly" might or might not add to the offence of bribery, for the reasons expressed, there is no evidence upon which a reasonable jury, properly instructed could find that Ms. Sorbara committed bribery.

[107] There is no case for her to answer and I direct a verdict of acquittal on all counts for both Ms. Sorbara and Mr. Lougheed.

Released: October 24, 2017

Signed: Justice H. Borenstein

[1] At one point during the trial, the Crown suggested that its theory might relate to Sorbara and Lougheed inducing Olivier to refrain from becoming an independent candidate; however, in submissions, they confirmed that was not the Crown theory. It was to refrain from becoming the OLP candidate.