The charges against Mayor Larry O’Brien do not contravene the Criminal Code and his trial should be stopped, his defence lawyer insisted yesterday.
Elaborating on the position he alluded to last Wednesday, defence lawyer David Paciocco spent most of yesterday attempting to convince Judge Douglas Cunningham that a “political advantage” does not match the definition of “reward, benefit or advantage of any kind” as used in the Criminal Code.
O’Brien is facing two criminal charges stemming from allegations that he attempted to secure a National Parole Board appointment for Terry Kilrea in exchange for Kilrea dropping out of the 2006 mayoral election.
Paciocco argued that “reward, benefit, of advantage of kind” in the sections of the Criminal Code used to charge O’Brien, 121(1)(d) and 125(b) had to be “measurable, material of tangible gain or profit.”
Otherwise, Paciocco argued that negotiating Senate or ambassador appointments would be illegal, as would incidents when MPs Belinda Stronach, Scott Brison, and David Emerson switched parties and were immediately given desirable positions in the government.
Taken to literal extremes, he suggested it could even be illegal to discuss an appointment in exchange for hard work.
The reality is, said Paciocco, it is not possible to determine whether Kilrea being in the 2006 race would have hurt O’Brien, or if it benefited O’Brien when Kilrea dropped out.
“There is no evidence … upon which this court could conclude that the withdrawal of Terry Kilrea constituted a material or tangible gain,” he said. “(Political advantage) has no exchangeable value, like a house or a car or a series of meals. It’s not something that can be valued.”
Crown attorney Scott Hutchison argued that patronage appointments and Parliamentary floor-crossings are irrelevant to this case.
“One individual said, remove yourself from this political contest, do not compete against me for this political elected office and I will use my influence, co-operation, et cetera, to secure you a federal appointment,” said Hutchison. “Did Parliament mean to criminalize that or not?”
O’Brien’s trial resumes this morning.
