Judge re­serves de­ci­sion in gas plant trial

Kenora Daily Miner and News - - ONTARIO NEWS - COLIN PERKEL

TORONTO — Two for­mer top po­lit­i­cal aides will hear on Thurs­day whether they need to of­fer fur­ther de­fence to ac­cu­sa­tions they il­le­gally de­stroyed doc­u­ments about the On­tario gov­ern­ment’s po­lit­i­cally ex­plo­sive de­ci­sion to can­cel two gas plants ahead of the pro­vin­cial elec­tion in 2011.

On­tario court Judge Ti­mothy Lip­son on Tues­day re­served his de­ci­sion on a re­quest from David Liv­ingston and Laura Miller for a di­rected ac­quit­tal — that he dis­miss the case against them with­out the de­fence put­ting for­ward any ev­i­dence.

Liv­ingston and Miller, top aides to ex-Lib­eral premier Dal­ton McGuinty, ar­gued through their lawyers that the pros­e­cu­tion has failed to prove their guilt on charges of mis­chief and il­le­gal com­puter use but pros­e­cu­tor Tom Lemon said e-mails from 2012 in­di­cated their cul­pa­bil­ity.

Among the e-mails, court heard, were in­struc­tions on “dou­ble delet­ing” doc­u­ments, and dis­cus­sion of the in­creas­ingly tense po­lit­i­cal sit­u­a­tion at the time: A leg­is­la­ture com­mit­tee and oth­ers were re­quest­ing doc­u­ments re­lated to the Lib­eral gov­ern­ment’s de­ci­sion to scrap and re­lo­cate the gas plants, which cost taxpay­ers more than $1 bil­lion.

Both Liv­ingston, who was McGuinty’s chief of staff, and his deputy Miller were quick to say they had no records re­spon­sive to the in­for­ma­tion re­quests, court heard. But Lemon ar­gued the duo know­ingly and de­lib­er­ately wiped com­puter hard drives in the premier’s of­fice in vi­o­la­tion of guide­lines and poli­cies re­lated to the records. He also said the pair kept se­nior bu­reau­crats in the dark about what they were do­ing.

“There was no in­ten­tion to com­ply with any of those poli­cies,” Lemon told Lip­son. “Cer­tainly, they in­tended to wipe those hard drives.”

While the pair ad­mit delet­ing about 400 files from 20 com­put­ers, they main­tain the files con­tained only per­sonal data or po­lit­i­cal records they were not obliged to keep. In ad­di­tion, their lawyers said, no ev­i­dence ex­ists to show ex­actly what was deleted.

“We don’t have to prove that the de­fen­dants deleted spe­cific records,” Lemon coun­tered. “The data be­ing wiped did not be­long to them.”

In press­ing for a di­rected ac­quit­tal, Liv­ingston’s lawyer Brian Gover de­nied the pair had acted ne­far­i­ously, stat­ing the deleted e-mails were “po­lit­i­cal in na­ture.” The law, Gover said, only re­quired re­ten­tion of records of longterm busi­ness value to the On­tario gov­ern­ment, and the rel­e­vant e-mails about the fall­out from the gas-plants de­ci­sion didn’t qual­ify.

Miller’s lawyer, Scott Hutchi­son, said the pros­e­cu­tion had opened its case by sug­gest­ing the pair had deleted thou­sands of doc­u­ments as part of some “grand con­spir­acy.” The e-mails the Crown pointed to as ev­i­dence of guilt sim­ply re­veal the ob­vi­ous, Hutchi­son said: The gov­ern­ment’s gas plants de­ci­sion had been con­tro­ver­sial.

“I’m pre­pared to stip­u­late there was a po­lit­i­cal con­tro­versy in 2012,” Hutchi­son said. “If you look at these e-mails, they are all po­lit­i­cal, they are all tran­sient, and none of them would have had to be pre­served.”

“Your po­si­tion is that there were no busi­ness records that had to be re­tained?” Lip­son asked.

“None of these e-mails had to be re­tained,” Hutchi­son said.

Hutchi­son said his client’s job re­lated to “po­lit­i­cal mes­sag­ing” about the is­sues of the day and no obli­ga­tion ex­isted to pre­serve re­lated dis­cus­sions.

Lip­son ap­peared to have dif­fi­culty that records con­cern­ing the gov­ern­ment’s de­ci­sion were “per­sonal.” He also won­dered whether free­dom of in­for­ma­tion re­quests changed the sit­u­a­tion, not­ing the ac­cused said they had no records and then had Miller’s spouse, Peter Faist, wipe the drives.

“There’s no ev­i­dence of any (re­spon­sive) records ac­tu­ally be­ing de­stroyed,” Hutchi­son said. “That’s the prob­lem.”

The pros­e­cu­tion last week ad­mit­ted it had no case on a third charge against Liv­ingston and Miller, breach of trust.

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