OTTAWA - Lawyers for Ottawa Mayor Larry O'Brien have argued it will effectively brand every politician in the country as a crook if their client is convicted on two charges of influence-peddling.
The curveball argument came as the prosecution completed its witness list Tuesday.
The Crown is seeking to prove that O'Brien offered to get a fellow right-of-centre candidate for mayor a federal appointment in order to lure him out of Ottawa's 2006 municipal race, thus avoiding a split vote.
A series of prosecution witnesses, including one-time mayoral candidate and O'Brien accuser Terry Kilrea, gave frequently contradictory accounts of what transpired.
So when O'Brien's defence team told the court Tuesday it would seek a directed verdict from Judge Douglas Cunningham, most observers expected they'd ask him to toss out the case for want of evidence.
Instead, their principal argument was that the case should never have got to court because the alleged crime is merely "the stock in trade of political discourse."
"It's our position that even if the Crown had managed to prove its theory beyond a reasonable doubt, a conviction of Mr. O'Brien on both the counts is legally impossible," David Paciocco, a criminal lawyer who teaches law at the University of Ottawa, argued on O'Brien's behalf.
Paciocco said the Supreme Court of Canada has previously ruled that the concept of "reward, benefit or advantage" in corruption cases addresses profit or material economic gain - and not something as "ephemeral or common-place as political advantages."
The defence asked leave to call an expert witness who has studied the use of political appointments "since the inception of our democracy."
That witness, said Paciocco, will show "how political appointments have been made in order to achieve political advantage on countless occasions."
In all those appointments, said O'Brien's defence team, there would have been communication, solicitation and negotiation in advance.
"Simply put, if your honour was to find that negotiating with someone or offering someone or attempting to exchange for political advantage was a criminal offence, you would effectively be declaring the conduct of many honourable members - including prime ministers of this country - criminal."
One of the Crown's final witnesses denied Kilrea's story on Tuesday.
Conservative pollster Dimitri Pantazopoulos told the court he warned Kilrea that a federal appointment as a "quid pro quo" for leaving the 2006 municipal race would be illegal.
Pantazopoulos said he had lunch with Kilrea in July 2006 to give him the results of a poll commissioned by O'Brien. He testified that Kilrea told him his "real calling" was law enforcement, not politics, and that he'd like a parole board job.
Pantazopoulos said it was the first he'd heard of any appointment - and he portrayed the notion as Kilrea's idea.
John Reynolds, the Conservative 2006 election campaign chairman, was to be the prosecution's final witness. The case is being heard by judge alone.