In defence of patronage: Liveblogging the O'Brien Trial - Macleans.ca

In defence of patronage: Liveblogging the O’Brien Trial

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Seriously, y’all, this is going to be fun, so check back at 10am for all the legal wrangling — and, depending on what the judge decides, what could be a fascinating morning of political philosophizing.

Will it be “the end of the political world as we know it”, as predicted by the Ottawa Citizen — or at least its headline-writer — or just another day of procedural back-and-forthing in Courtroom 36? Tune in at 10am to find out.

9:50:18 AM Greetings, fans of the metapolitics of persuasion! After a chaotic start to the day – no, really, I know I *always* say that, but this was truly exceptional, even by ITQ standards; at one point, I had berries in both hands and my ipod clenched in my teeth *while crossing the street* (and thanks to all those indulgent downtown drivers who didn’t mow me down like I no doubt deserved).

Anyway, we’re here in Courtroom 36 – we being the media, Team Larry, and Vic Toews’ doppelganger – waiting for — wait, let me check with my colleagues to find out *exactly* what we’re waiting for; I’m not sure if the judge will rule right away on whether to let the defence go forward with the directed verdict motion, or if we’ll hear thrilling legal arguments pro and con before we get to the main event. The star witness – David Mitchell, president of the Public Policy Forum – is here, so Team Larry is ready to go.

9:57:11 AM
And here we go!

9:59:29 AM
After a wave from the judge – well, more of a solemn gesticulation of the “Okay, you; dazzle me” variety – Paciocco – that would be the special guest lawyer arguing on behalf of the directed motion for Team Larry – gives a rundown of why the judge should allow the directed verdict motion to go forwars, and repeats the juicy part of the argument, which is that even if the Crown *had* proved its case, it still wouldn’t “add up” to an offence under the law. It’s like the least sexy version possible of the jury nullification gambit.
10:03:38 AM
According to Pacoccio, this prosecution is simply an attempt to “shoehorn” the facts into a pattern that simply does meet the parameters of the offence that was ostensibly committed, and no, we won’t be making any oblique glove-related references about fitting and acquitting, we promise. He goes over the wording of the — was that the arraignment? I’m not sure — but anyway, it comes down to the alleged “reward” that was allegedly offered by O’Brien, and how the charges were “misconstrued”, and tweaked to fit the rules, which were not to protect the integrity of elections, but the operation of government. “Square pegs in round holes,” he notes.

10:09:09 AM
Wait, or is that Edelson making the argument at the moment? I can’t keep any of these lawyers straight — it’s just impossible, and why don’t they *identify* themselves before speaking? I miss my inquiry. Also, Team Larry would like to make it clear that they are in no way conceding that any offer was made, or that any of the allegations are grounded in fact.

10:13:37 AM
Okay, it *is* Pacoccio. I know you were all on the edges of your respective seats. Anyway, he’s giving the judge a preview of what he’ll be arguing if allowed to go ahead — either with or without the expert witness — and says that, in his view, this would be the “fairest approach” for the accused. Oh, and he’s also very keen to make sure the judge understands that he doesn’t *need* the expert evidence to proceed — it’s not at all necessary, it just might help him out — which I gather is to cover his bases. The judge, however, thinks that the issue of expert evidence is one thing on which he may need to rule quickly.

10:17:08 AM
And now, the Crown – and the gangly Scott Hutchinson, who makes what sounds like, but is in fact, entirely unlike a joke as he begins his response; he doesn’t see why the defence wants to change the way these sorts of motions are ordinarily arguing — which, I guess, he was, with his staged arguments and choose-your-own-legal-adventure approach. The judge reminds him that they need to resolve whether expert evidence will be called, and they can do that now, or once he gets to stage three — the one where the witness would take the stand.

10:19:59 AM
Okay, so the judge wants to get this expert witness stuff out of the way before the rest of the argument is heard. Yay!

10:21:21 AM
After the judge does a little papershuffling, Pacoccio begins his defence of the defence’s wanna-be witness-in-waiting, or at least his expertise in the relevant field, if “defending patronage” can be considered such.

According to Mitchell’s affidavit, he’s being asked to provide an opinion on the storied history of political parties promising “political awards and advantages”, as well as the context in which the laws surrounding such activities were passed. The Hinchey case – which I may be mangling, as far as the spelling – rears its head again, and the question of whether, as well as the context “in which things existed at the time of enactment”. The judge notes – not unkindly – that where Pacaccio “seems to be deviating”, at least as far as the context of the law, is that he doesn’t recall any judge “remotely suggesting” that expert evidence of the sort that *he* wants to provide would be helpful to *him*. He reads from a past decision, and notes that “these are simple words”. So – it sounds like he may be leaning against allowing it in, but my track record in predicting this judge’s rulings is iffy at best.

10:31:26 AM
Because I am not actually a sadistic maniac – no matter what sordid rumours you might have heard – I’m going to spare you a point-by-point recap of the arguments — although if anything good creeps into the precedent-out-pointing, I’ll keep you posted.

10:38:29 AM
Pacoccio thinks that it would be “unrealistic”, given the role that political appointments and patronage has played since the dawn of our parliamentary democracy, not to allow Mitchell to give us a little history of the sordid side of Canadian politics. You know, in case we hadn’t sufficiently given up faith in the system.

10:45:14 AM
The judge really, really doesn’t seem to think that he needs the defence – or, more precisely, David Mitchell – to fill his head with Senate musical chairs to floorcrossings. Pacoccio insists that his witness wouldn’t just deliver the highlights of the low points of political scandals past. He – we’re told – would start with Sir John A. MacDonald and carry on from there. The liveblogger in me is really hoping the judge rules in his favour, but it doesn’t look like that’s going to happen.

10:57:04 AM
The Crown gets a chance to rebut Pacocchio, and Hutchinson acknowledges – cheerfully, even – that floorcrossings and patronage appointments are, indeed, simply part and parcel of politics; what the judge is being asked to do, however, is to equate that to a “quid pro quo” with “trafficking in appointments”. It misunderstands both patronage *and* the offence to treat all such deals as quids pro quo, and would be a highly controversial finding. So there.

11:00:37 AM
Wait, not quite so there — even if Pacoccio’s contention that politics is a mire of competing self-interests was true, it’s still not the same as what is being alleged went on between O’Brien and Kilrea.

The judge points out, somewhat wistfully but with an undercurrent of grumpiness, that what *he’d* like is to hear whether Hutchinson thinks he should be allowed to hear expert testimony on a directed verdict motion.

11:07:25 AM
The judge seems to be having some difficulty getting *either* side to come up with arguments for or against hearing from the expert witness; both Team Larry and the Crown seem to be more interested in bickering over the putative argument itself. Poor David Mitchell, caught in expert limbo. (I get the impression that we might break for lunch before the judge rules, so this liveblog may end — at least temporarily — on a cliffhanger.

11:13:43 AM
You know what this courtroom could use? Earpieces. I’d even take one of those ones from the press theatre that seem to be designed for Siamese cats.

11:16:03 AM
The judge tells Pacoccio that, quite frankly, he doesn’t need David Mitchell to explain “the concept of patronage”, nor the history thereof, or how it has evolved today; he’s perfectly capable to interpret the Code without that, but he wants to give the two sides a chance to discuss the issue, and come up with a compromise. Fifteen minute break!

11:38:16 AM
Did I mention the mayor is wearing a pink tie? Because he totally is. And no, we’re not back yet — I guess the lawyers are still trying to figure out if we need an expert witness after all. I’m not sure what happens next. Also, I’d like to give a shoutout to Colleague McGregor – as seen on twitter – for bringing ITQ a muffin from the media room, thus staving off an unscheduled journey to the Bad Low Blood Sugar Place. Also, are y’all following what’s going on in Halifax today? I may have to bail on this hearing at midday so that I can be on the Hill for the thrilling conclusion.

11:42:34 AM
And – we’re back; it sounds like the David Mitchell History of Patronage will not go ahead as scheduled. Well, that’s disappointing, but not really a surprise, and means that we’re going to plunge straight into arguments. Everybody have their snorkels securely mounted to their faces? It can get murky down there, after all.

11:45:27 AM
Pacoccio kicks things off by loading up a PowerPoint presentation, which we – the audience, that is – can’t really see, thus dulling its impact as far as the liveblogging goes.

11:50:27 AM
I’m sorry, did Pacoccio just bring up a case involving the East India Company, and a Mr. Witherspoon, from whom money was “extracted” in return for something, and — yes, it was, and no, it’s not your imagination; I’m pretty sure that was a subplot in at least one of the Pirates of the Caribbean movies.
It all comes down to an argument over whether someone has to actually *have* influence, or at least the ability to influence the outcome in a particular instance.

11:55:19 AM
The existing law would *not* cover two Marijuana Party candidatews arguing over who should run for the party in the next election, Pacoccia insists — he also repeats his Larry, Curly and Moe example, and notes that this should not *in any way* be taken as an admission that an offer was made, simply that even if it *had* been, the alleged offer-er – otherwise known as the accused – had no power or influence, and no favour to curry with this particular government. I wish I could see the not-currently-the-mayor’s face as his lawyer lays out what a Very Unimportant Person he was — well, in the great scheme of local Tory political things, at least.

12:03:49 PM
Now, on to the different possible interpretations of the law, and how this particular possible interpretation may be incompatible with what actually happened, or may have happened – oh, relax, I caught myself – in this case. We head back to Hinchey, which seems to be the most favourable precedent for the defence, which – or so Pacoccio contends – found that the purpose of the law was to prevent corruption *in government* – as opposed to the “private corruption” in the Three Stooges’ negotiation (which may or may not have — oh, you know the drill).
So — Team Larry is now indirectly comparing their client, and our mayor, to a Stooge? Do I have this right?

12:10:08 PM
The judge muses as to how that would work if one party gave money to a second to secure an appointment that the latter party could not provide, and Pocaccio tells him that would actually be fraud, not corruption. The judge looks unmoved, and Pocaccio hurries onto something about freedom of expression, which I don’t quite catch — is he suggesting that anti-influence peddling laws are a violation of free speech? That can’t be right. Not that he or ITQ is saying that any such speech was uttered, of course.

12:18:31 PM
Pacoccia is now splitting hairs on a molecular level on what constitutes an “offer” — does it require agreement to have been reached? Are negotiations sufficient to constitute an offer under the law? Suddenly, I’m right back at the Oliphant inquiry, hearing about Bear Head and the Understanding In Principle.

“You need evidence of a significant nexus to government” on the part of *someone* involved in these negotiations-that-may-or-may-not-have-taken place, he tells the judge. There is no evidence – none, not a scintilla – that O’Brien could get *anyone* appointed to the parole board. “The evidence,” in fact, “is to the contrary,” Pacoccio points out.

12:31:17 PM
Pacoccia reminds the judge that two of the Crown’s own witnesses – Dave Penner and John Reynolds – confirmed that O’Brien had no power to magick up a federal appointment for the luckless Kilrea.

12:39:53 PM
And – lunch break! The court will be back at 2:15, but I’m not sure about ITQ, who is sorely tempted to head back to the Hill for the excitement that may be about to ensue. I’ll keep y’all posted, I promise.