Gas plant trial may flame out
Witness rejection dealt body blow to prosecution
One way or another, when Ontario Court Judge Tim Lipson walks into courtroom 125 at Old City Hall on Friday for the resumption of the gas plants trial, it will be to a case on the brink.
Lead prosecutor Tom Lemon may announce he’s dropping some of the six charges against David Livingston and Laura Miller. He dropped hints of that earlier this week.
And regardless, the judge will hear argument on a defence motion for directed verdicts of acquittal, which could see him ultimately toss the lot.
Indeed just last month in Sudbury, presented with a similar motion in the Elections Act trial of two other Liberals, Ontario Court Judge Howard Borenstein dismissed the charges against Pat Sorbara, Premier Kathleen Wynne’s former deputy chief of staff, and local party fundraiser Gerry Lougheed.
Livingston and Miller, respectively the chief of staff and deputy chief of staff to then Ontario Premier Dalton McGuinty, are pleading not guilty to three criminal charges apiece, all tied to their alleged destruction of documents about the 2010 and 2011 decisions of the McGuinty government to cancel the two gas- fired plants in Mississauga and Oakville.
Questions about the $1-billion cancellation cost had opposition parties howling for then energy minister Chris Bentley to produce some records.
The issue was the defining one of McGuinty’s last term.
How then, after an Ontario Provincial Police investigation called Project Hampden that lasted more than four years, has it come to this, that the case is hanging by a thread? The answer is simple. When on Sept. 28, Lipson ruled that retired OPP Detective- Sergeant Bob Gagnon wouldn’t be allowed to testify for the Crown as an expert witness — the judge said he was too embroiled in the hurly-burly of the investigation to be considered nonpartisan and allowed to give his opinion — it was a body blow for prosecutors.
Gagnon would have rendered into plain language the technical data he had analyzed. Without him, or someone else in his place in the witness box, there was no one to tell the judge what the data meant or even where it had been found.
And if it seemed a police mistake to have allowed Gagnon to become enmeshed in the case, it wasn’t.
The lion’s share of the responsibility belongs elsewhere.
Cops, after all, however sophisticated, aren’t lawyers, particularly alert to the changing nature of the law on expert witnesses.
And the law was changing, right under all their feet.
A full year after Gagnon was hired — once the force’s IT and e- crime guru, he was lured out of retirement on contract to work as a technical analyst on Hampden — the Supreme Court of Canada released a decision in what’s become known as the White Burgess case.
The 2015 decision spelled out for the first time that impartiality and independence are an essential part of what makes a properly qualified expert. The ruling demands increased scrutiny by judges of proposed experts, and subsequent lower- court rulings only have affirmed that, especially in cases of police experts.
As Lipson wrote, “If measures had not been taken by the police or prosecution prior to White Burgess to retain an outside and independent computer forensic analyst unconnected to the investigation, the judgment in White Burgess should have sent a clear message to them to strongly consider doing so.”
But aside f rom giving Gagnon his own lab at OPP headquarters in Orillia north of Toronto, nothing else was done to distance him from the Project Hampden team.
In fact, as time went on, Gagnon got only more involved, as would be expected of a former veteran cop.
For almost as l ong as there was a Project Hampden, there had been lawyers embedded in it.
That’s how it works with the force’s major crimes division: As a provincial force, the OPP assembles a team from far and wide and then consults a Crown attorney, usually a provincial Crown.
In this case, to avoid the perception of a conflict of interest — the OPP investigating allegations against other Ontario government employees — it was the federal Public Prosecution Service of Canada to whom the provincial attorney- general directed them.
And within t he first month of the investigation, in June of 2013, detectives first spoke to Richard Roy, a veteran prosecutor based in Montreal, and Sarah Egan, who is based in Toronto.
By July that year, the police had met them in person.
Thereafter, t he group met every few months or so, often via teleconference, but sometimes in person in Ottawa, and as the clock ticked down towards trial, much more regularly.
Yet Postmedia has learned that even as the makeup of the prosecution team changed ( Roy, after a health crisis in his family, had to step down and in November of last year was replaced by Lemon, and earlier this summer, Ian Bell was added on as a technical expert), in all those discussions with detectives, not one of the lawyers ever raised a concern that Gagnon’s involvement could be threatening his status as an expert.
Nor, as Lipson pointed out, did any of them arrange for an IT expert who wasn’t a part of the investigation to review Gagnon’s work and who could testify about it in court. It was as if the federal prosecution service wasn’t even aware of the White Burgess decision.
Asked about this — how they could have neither noticed the threat nor raised t he alarm — prosecutor Egan replied in an email that she couldn’t comment while the matter was before the court. Lemon didn’t respond.
As a former colleague who has sat in court for much of the trial snapped one day recently, “They may lose this because they’ve been stupid.”