Wednesday, August 05, 2009

Larry O'Brien Verdict

Ottawa courtroom 37 is the biggest in town, but even that huge room, which was once skedded to hold the Bernardo case and was most recently the scene of the sensational Midway murder trial, was filled to overflowing. The local media, never big on class, butted in front of the line, even though many of them had arrived early enough to get seats if they had taken their place in line. The overflow went to another room with closed-circuit TV monitors. Mayor O'Brien sat in centre row, front, with his bodyguard, his wife and sons. O'Brien's staff, spinmeister and friends had reserved seats at the right front of the courtroom. Judge Cunningham walked in exactly on time.
The judge needed about an hour and fifteen minutes to read his decision. He said the case was more than just weighing the stories of Terry Kilrea and Larry O'Brien. The prosecution had to prove its version of the facts without leaving the judge with a reasonable doubt of O'Brien's guilt.
The Crown relied substantially on the evidence of Terry Kilrea. The Crown said there was a wealth of corroborative evidence of Kilrea's claim that O'Brien tried to bribe him into quitting the 2006 mayoralty race with the offer of an appointment to the National Parole Board, while the defence used "colourful adjectives" to describe Kilrea as a manipulator.
The judge believed O'Brien was telling the truth when he told police his meeting of July 12, 2006 with Terry Kilrea was a "big swinging dick contest" designed to intimidate Kilrea out of the mayoralty race. "I have no doubt that Mr. O'Brien arranged the meeting of July 12 and its purpose was to convince Mr. Kilrea not to run," the judge said. Kilrea's inability to remember the date of the meeting "provides an early warning signal of the powers of accuracy" of Kilrea, the judge said. He had no doubt O'Brien was aggressive, and that there was some discussions about Kilrea's campaign financing.
Whatever happened at that meeting -- and the judge said he could not be sure what did take place -- the "evidence favors Mr. O'Brien's version that he contacted (former Canadian Alliance interim leader and ex-Harper campaign strategist) John Reynolds after the meeting at 700 Sussex and was told not to have anything to do with getting Mr. Kilrea a political appointment. I believe Mr. O'Brien's evidence on this salient point."
That was enough, it seems, for the judge to say that whatever happened, the fact that any offer was whipped off the table soon after the fact was enough to keep O'Brien from being convicted. That struck me as an interesting interpretation of criminal law that might come in handy to many other defence lawyers.
Then the judge turned to the issue of Kilrea's trustworthiness. In this, Cunningham was devastating. He very clearly showed how Kilrea does play the media, and how he distorts facts to fit his goals. For example, the judge discussed Kilrea's torquing of a letter from his employer, the Attorney General's office, that Kilrea deliberately inflated into a threat to fire him unless he quit the race, when the letter, in fact, showed no such thing.
The judge said he believed O'Brien's pollster that the campaign had not tried to get Kilrea an appointment. The judge also tossed Tory MPP Lisa MacLeod's testimony that O'Brien told her he was getting an appointment for Kilrea as vague and trashed the Crown's interpretation of the testimony of O'Brien and Kilrea campaign workers. The judge concluded the evidence of the three campaign workers left him with serious doubts that they proved any wrongdoing.
As for Ottawa deputy police chief Susan O'Sullivan, her evidence lent support to O'Brien's claim that, when he learned the National Parole Board offer was illegal, he backed away from whatever offer he might have made to Kilrea.
The judge said he believed from the afternoon of July 12, 2006, when he talked with Reynolds, O'Brien took no further action regarding Kilrea's appointment to the National Parole Board. The judge said he was "perplexed" about what happened at the Tim Hortons on Robertson Road at the last meeting between O'Brien and Kilrea, but whatever went down in the parking lot of the Bell's Corners Hortons was not illegal.
Kilrea's offer to swear an affidavit for the Ottawa Citizen shows naivite and poor judgment, the judge said. He said, despite Kilrea's testimony, Kilrea leaked e-mails to the Ottawa Citizen's Gary Dimmock. They were not stolen from his computer during a real estate open house, as Kilrea suggested in his testimony.
He found the circumstances of the leak of the affidavit to the Ottawa Labour Council troubling and blamed Kilrea for it.
The judge believed the defence assertion that Kilrea was shopping himself around, looking for an appointment to the parole board, a spot as a JP, or any other government work he could get. Kilrea had called then-mayor Bob Chiarelli, who he had run against in 2003, a disgraced and a coward, yet, in the fall of 2006, Kilrea threw his support behind him.
Pretending to have influence was at the heart of the prosecution. The Crown had to prove that the offer of a federal appointment was made in return for Kilrea leaving the mayoralty race. "I am left with a reasonable doubt that this qui pro quo was offered... While at best I may have suspicions of what happened at this conversation, I am left with a reasonable doubt," the judge said.
"He (O'Brien) was walking a fine line" but the judge was left with that reasonable doubt, and so Larry O'Brien walked.
So, now what?
Ken Gray of the Ottawa Citizen is right: Larry O'Brien, despite the delight of his supporters by today's events, is a lame-duck mayor.
And, as the folks at CFRA and the Ottawa Sun crow over O'Brien's acquittal, remember that they were the media outlets that Kilrea so often manipulated. They were Terry Kilrea's willing mouthpieces until O'Brien, who had the air of a winner, came along.
It will be interesting to see if O'Brien tries to recover his legal fees from the city. Lawyers I've talked to estimate the defence cost between $750,000 and $1,000,000.
Watch for my piece on the case in Ottawa Magazine, which will be distributed next week. Ron Corbett also has an article in the same issue on Terry Kilrea. They're both, I think, pretty good reads that capture the essence of this bizarre case.

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