Trial by Fire
A political neophyte, Larry O’Brien handily won this city’s top job, quickly earning a legacy as a headline-grabbing mayor unafraid of the spotlight — he promised to bring a business mentality to city hall, but his fix-it nature was overshadowed by a precedent-setting trial. Mark Bourrie unpacks the strategy behind the courtroom climax
There are so many truths in politics, so many realities.
Not everything that is heard is what is said. Not everything that is said is what is heard. Words are not always precise things. The English language has so many words, but words are just sounds the brain uses to transfer information.
Some people can craft this transition very well: each word is pretty much the right tool for the job. Others can’t. They have a messy tool chest — a bucket of rusty nails and bolts when what they need are fine tools to fix a watch.
In politics, words — much like votes and money — are part of the tool kit. In law, words make up all the tool kit. So when the precise words of law are fitted to the deliberate obfuscations of politics, strange things can happen.
For two months off and on, Superior Court Judge Douglas Cunningham tried to make sense of a lot of words: Larry O’Brien’s pre-2006 municipal-election pitch to Terry Kilrea, the words Kilrea used for his never-ending job hunt, and the words of the lawyers prosecuting O’Brien on election corruption and influence peddling.
This great wave of words concealed as much as it explained. Reporters and federal politicians believed that the O’Brien scandal might leap like a salmon from Ottawa City Hall to Parliament Hill. They would be disappointed.
The trial centred on the allegation that O’Brien had offered to get Kilrea, putative candidate for mayor, a spot on the National Parole Board. Kilrea is a court enforcement officer. His job is to enforce court orders — usually implementing evictions and shutting down the odd crack house. He has no post-secondary education, no training as a police officer or in any important aspects of the criminal law.
But Kilrea likes words. For half a decade, he has tried to be a political mover. His views reflect those of the morning radio crew at CFRA, the station that gave Kilrea a platform until the much more electable right winger Larry O’Brien announced his candidacy in July 2006.
Kilrea represented the side of Ottawa that tourists don’t see: Anglo small-town eastern Ontario, not connected to government, and not qualified for the federal public service because of a lack of language skills and education. This is the Ottawa that’s part of The Valley, and Kilrea was able to tap that vote in both urban and rural Ottawa for a very respectable showing against former Liberal MPP Bob Chiarelli in the 2003 mayoral race.
John Baird is also part of the Valley — or at least he has cast himself that way. His education, his proficiency in French, and his spell in Toronto as an MPP have not erased the fact that he’s a kid from Bell’s Corners. Baird is an outsider to the world of what the Valley calls Trudeaupia, the Liberal-left public service whose members live in New Edinburgh, the Glebe, Orleans and, worst of all, Gatineau.
So it’s no surprise that Terry Kilrea knew John Baird and that Larry O’Brien, one of the city’s tech lords, did not.
Liberals and NDPers hoped Nepean MP John Baird’s testimony at O’Brien’s trial would be exciting, perhaps even expose a few of Baird’s more interesting personal secrets. Instead, it was short and boring. It quickly became clear that if there was some sort of conspiracy, Baird didn’t know anything about it.
There was a solid ring of truth to Baird’s testimony. In Parliament, he’s among Canada’s most vicious, most partisan politicians. But in court, he came across as a minister who, after quarterbacking the Harper government’s Accountability Act through the House of Commons, knew that his friend Terry Kilrea was not qualified to determine whether convicts should be let out of jail.
And that became the nub of O’Brien’s defence: Kilrea was not only too dense to be on the National Parole Board, he was too slow to understand what O’Brien was actually saying to him. And not only was Kilrea quite thick-skulled, he was also duplicitous and sleazy, a man in a constant search for some kind of political power, whether through election — something that had eluded him — or by a government appointment.
“Dumb like a fox.” That was lawyer Michael Edelson’s first line of defence.
The second line also turned on words and their meanings. David Paccioco, Edelson’s partner, wrote the book on trial evidence. It’s a two-inch-thick volume that is used at the University of Ottawa law school, where Paccioco teaches.
He argued that two guys playing political horse-trading on a summer afternoon on the patio of 700 Sussex did not constitute a crime. This was the “big swinging dick” defence. Long after the meeting, when the police had taken a professional interest in what happened that day, O’Brien had described the session as a “big swinging dick contest” to try to eliminate one man from the race. There could be only one candidate for the votes from The Valley, or Alex Munter — who represents everything Lowell Green’s callers despise — would win.
Paccioco argued that people make political deals all the time. Political-party leadership races are full of these deals. Many a third-place loser has landed a cabinet job by throwing support behind an eventual winner. And though people might not like it, such MPs as Belinda Stronach and David Emerson crossed the floor of the House of Commons, moving directly from the wasteland of the Opposition to a prestigious, well-paying, and perktastic cabinet job.
“Paccioco can make an argument that, coming from someone else, would sound ridiculous. But from him, it makes complete sense. He has command of the material, but he is also the most silver-tongued lawyer I have ever met,” an Ottawa lawyer said after Paccioco made this pitch to Judge Cunningham.
But the judge had his own interpretation of the words in the law. Yes, he reasoned, people play those political games. That doesn’t make it right. Nor, he added, do they play for jobs with regulatory agencies such as the parole board, which can have dire impacts on people’s lives. If politicians do play that way and they end up in front of him on the same charges that O’Brien faced, the judge would convict them if there was enough evidence against them to prove the offence.
That’s how the charges played out in court. What could the prosecutors prove was actually said? How much of O’Brien’s filmed statement to the police was an admission of criminal wrongdoing?
From the defence side came the argument that all the talk — whatever it was — was just talk. O’Brien hadn’t offered Kilrea anything. The allegations were just sour grapes on Kilrea’s part, an attempt to get back at the man who had supplanted him in an election he might have won.
The drama, such as it was, played out in parallel campaigns outside the courtroom. O’Brien hired Barry McLoughlin, a spin doctor and political-campaign expert, to handle the press. McLoughlin spent most of his day thumbing on a Blackberry and telling reporters the mayor would not talk to reporters.
The Ottawa Citizen had three journalists in the room: city hall columnist Randall Denley, senior writer Don Butler, and Hill reporter Glen McGregor on Twitter. The Ottawa Sun had four people in or near the trial, although one of them, city hall columnist Sue Sherring, was excluded from most of the trial because she had been subpoenaed as a witness.
The CBC sent Stéphane Émard-Chabot, a former Ottawa councillor and one of Paccioco’s law-school colleagues, to do a play-by-play of the trial. It also had radio reporters, along with local, and sometimes national, television journalists. The local radio and television stations sent their own contingents, and the press pack swelled with parliamentary reporters when Baird testified.
The press had a lot to do with this case. There’s still a dispute over who broke the story. Wikipedia says A Channel reported it during the election campaign. The Sun’s Sherring made a brief mention of it at about the same time. Neither outlet grasped the idea that Kilrea’s allegation crossed the line from sleaze to crime.
A few weeks after the election, Kilrea gave the story to Jorge Barrera, then of the Sun, but the editors killed it. Sherring and city hall reporter Derek Puddicombe said near the end of the trial that they engineered the smothering of the story because Barrera poached their beats. (Barrera left the paper soon after.)
Kilrea then shopped the story to Gary Dimmock, one of the Citizen’s investigative reporters. The Citizen did something papers in this town rarely do: hired a lawyer, had Kilrea swear an affidavit, then conducted a lie-detector test, which Kilrea supposedly passed. Dimmock warned Kilrea not to talk to anyone else — especially other reporters.
It was all so exciting that the Citizen devoted pages to the allegation and the affidavit.
“He is revelling in this, with 50 different stories in which Kilrea is the centre of attention,” Edelson said on the last day of the trial as he tried to paint Kilrea as a media whore.
Along with the huge, sensational Citizen stories, Kilrea’s affidavit sparked a probe by the OPP Anti-Rackets Section. O’Brien called the police the day after a sit-down interview with the Ottawa Citizen and asked for an investigation to clear his name.
After their sit-down with O’Brien, in which the mayor used his “big swinging dick” metaphor, the police went on a hunt for e-mails. Somehow Dimmock got them before the cops. Edelson argued that Kilrea fed them to Dimmock, who then used them as leverage in his interviews with the cops.
At about the same time, Kilrea’s affidavit was leaked to Sean McKenny, president of the Ottawa and District Labour Council, who gave it to the police.
(In the trial, Kilrea suggested that one of the 62 people who went through the Kilrea home during a real-estate open house in early 2006 hacked into Kilrea’s computer and stole the e-mails.)
There were some other comic moments, such as when it came to light that two of Kilrea’s campaign men, Tim Tierney and John Light, were cackling in e-mails about their unimportant media manipulations. They saw themselves as future movers of mountains, asking each other if they planned to carve out careers in elective office and comparing themselves to Doug Finley, the guy who ran Harper’s campaign.
The defence did not call witnesses. O’Brien would not be able to tell the judge about the legality of his big swinging dick and its powers to intimidate and offend.
In the end, Edelson, a lawyer so ferocious that cops use him when they’re in trouble, tried to make dozens of tiny cuts to Kilrea’s credibility. The defence case — after Paccioco’s “everyone does it” legal challenge failed — relied on attempting to make Kilrea out as both devious and stupid, a man who distorted reality by manipulating words, a man who had used false words to smear a good man.
Unspoken was the fact that, no matter what the outcome of the trial, O’Brien paid a high price for those allegations: he had taken a lawyer to his police interview in April 2007 and had retained some of the best lawyers in the city for a year and a half. They had generated huge binders of material stuffed with all kinds of words. Conservative estimates of O’Brien’s defence bill are a minimum of $500,000, with outside estimates sitting at well over $1 million.
The man paying the bills, Larry O’Brien, never publicly sweated the costs during the trial. His wife, ex-wife, mother, sons, and friends came to court most days. On the day Paccioco’s argument was thrown out, there were about 30 of them. They expected to win.
“It was like the last day of school,” said a lawyer who watched most of the trial. “They came into court giddy and excited. They expected a quick morning. They had a hall booked for a party. O’Brien planned to do a bunch of press interviews. But as the judge went into his ruling, they became quieter. The body language changed completely.”
In the end, it seemed as though Edelson’s strategy was to bore the judge, perhaps induce some sort of hypnosis that worked on principles unknown to the rest of us. Edelson used thousands of words to try to paint Kilrea as a man addicted to his own media clippings and as a serial political candidate who had applied for many jobs, including a seat on the board of city housing, on the Ontario landlord-tenant tribunal, as a justice of the peace, and many more.
“I think he was trying to beat out John Turmel in the Guinness Book of World Records for biggest loser,” Edelson told the judge to snickers from the O’Brien camp in the right side of the courtroom. Edelson, no scholar of Renaissance philosophy, said Kilrea was “not Prince Machiavelli…but he is dumb like a fox.”
In the end, the trial came down to words: Did Kilrea hear what O’Brien was really saying? Did anything O’Brien say cross a boundary delineated not by a line but by a string of words? Had the judge been able to find his way through the fog of words generated by the lawyers on both sides of the case and reach the truth? It was a matter of whose words you trusted.