On October 24, the trial of Pat Sorbara, the former CEO of the Ontario Liberal Party, and Gerry Lougheed, a Sudbury businessman ended. Both were acquitted of bribery charges, laid under the Ontario Election Act. The result (an acquittal for both) is not remarkable. However, the manner in which the result came about is rare both succeeded in their application for a directed verdict. The media coverage surrounding the trial has paid little attention to this detail, but it is a significant one that warrants some closer examination.
An application (or motion) for a directed verdict, sometimes referred to a motion for a nonsuit, is an application brought by a defendant at the conclusion of the prosecutor’s case in which they argue that there is no evidence upon which a judge could convict. The reason why it is called a directed verdict is that, if one is granted in a jury trial, it requires the trial judge to direct that the jurors enter a verdict of not guilty. The test is set out in the case of United States v. Shephard. It says that the decisive question is “whether or not there is any evidence upon which a reasonable jury, properly instructed could return a verdict of guilty”. The test exists for an important reason: allowing a jury to deliberate about a conviction that would be legally impossible would obviously be unfair to the defendant.
Even though the test has its roots within the jury system, it is equally available to a defendant in a trial sitting with a judge alone. If the defendant is successful in their application, the result is an acquittal. If they fail, the trial continues. The defence can either call evidence that they believe would assist in proving their innocence or, where they believe the prosecutor’s case is weak enough, they can proceed directly to their final arguments. At that point, both sides make their submissions in relation to a different legal standard: whether the prosecutor has proven their case beyond a reasonable doubt.
The reason why it is rare for someone to be acquitted on the basis of a successful directed verdict application is that – in a nutshell – it means there was no evidence upon which they could have been convicted. From the standpoint of a judge or a jury’s decision making, there is quite a bit of room between a finding of “no evidence” and a finding that there just isn’t enough evidence to support a conviction beyond a reasonable doubt. When someone wins a trial on the basis of a directed verdict, people often ask why the charges were laid in the first place. The answer is different in every case. In criminal cases, it is often the result of police tunnel vision – inattention to the fact that, while certain conduct might be concerning, it is not criminal. The coverage of the Sudbury bribery trial seems to suggest that the decision to proceed with charges was largely a political one.
In some cases, it can be difficult to predict how the evidence will unravel at trial, and a directed verdict is a natural and correct outcome where the evidence goes poorly for the prosecution. Often though, when a charge is dismissed on the basis of a directed verdict, it is simply a failure on the behalf of the prosecutor to uphold their ongoing duty to assess whether their case has a reasonable prospect of conviction. In an era where it is common to wait more than a year for a criminal trial, it is hard to imagine any justification for proceeding on charges where there is no evidence that could support a conviction.
Brian Eberdt is a criminal defence lawyer with Lockyer Campbell Posner. Reasonable Doubt appears on Mondays.
A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Lockyer Campbell Posner or the lawyers of Lockyer Campbell Posner.
