Deleting ‘political’ emails fine, trial told
Defence makes final submissions at gas plants case
Is the gas plants trial, as defence l awyer Scott Hutchison said Tuesday, “a case that is supposed to be about deleted data ( but which) is devoid of deleted data?”
Hutchison was making final submissions on his and lawyer Brian Gover’s motion for directed verdicts of acquittal on the charges remaining against their clients.
The lawyers argue that prosecutors haven’t met the minimal threshold of “some evidence,” have failed to muster the slimmest of cases and that the charges should be dismissed.
Hutchison r epresents Laura Miller, former deputy chief of staff to former Ontario premier Dalton McGuinty; Gover acts for David Livingston, who was McGuinty’s chief of staff in 2012.
Miller and Livingston are pleading not guilty to mischief to data and unlawful use of a computer, the charges stemming from their alleged destruction of gas plants documents.
An earlier charge of breach of trust was dropped by prosecutor Tom Lemon last week.
Hutchison’s position is that whatever Miller and Livingston may have deleted, they were entitled to delete — in particular, he said, emails that were either transient or political.
One of the exhibits at trial is a two-volume set of emails retrieved by the Ontario Provincial Police via search warrants or production orders.
Hutchison said “virtually every one of the emails is a political discussion.”
They were certainly about political strategy, but many also dealt with looming government decisions and the thinking behind them — just the sort of documents, in other words, that could be deemed substantive.
As an example of one such, Lemon pointed to a July 3, 2012, email from Dave Phillips, then government house leader, to Miller and others, which was a “summary of options” open to the government on the estimates committee’s demand to produce gas plant documents.
The 11- page memo detailed the current situation — from a government point of view, it was dire, with the committee ordering then-energy minister Chris Bentley to cough up all documents related to the 2010 and 2011 decisions to cancel the Oakville and Mississauga gas-fired power plants.
Among the available options, the document offered the pros and cons of government members debating and moving amendments to stall the proceedings, allowing the motion to pass or pursuing a negotiated solution with opposition parties.
The email shows “the central importance of this issue to the government at the time,” Lemon said.
“Are you saying this is a business record that should have been retained?” Ontario Court Judge Tim Lipson asked. “Yes,” Lemon said. Virtually all of the emails in evidence at trial were recovered forensically by the Ontario Provincial Police.
Most bear at the top of the email the telltale description that they were found in various sync folders, the place where some otherwise deleted emails go to hide.
L e mon argued that Livingston and Miller were sophisticated operatives in the former premier’s office, that they had “a high degree of awareness” of the tumultuous gas plant issue that was the government’s most enduring burr in its saddle, and that they were deeply involved in government strategy and stickhandling.
The prosecutor argued Livingston and Miller had a two- pronged plan — to double- delete emails as a matter of course on a daily basis ( to avoid them being available on the server for about two weeks) and then have the hard drives, theirs and 18 others in the former premier’s office, wiped clean, a job they farmed out to Miller’s spouse, Peter Faist.
And, Lemon said, “they didn’t have proper authority to wipe the 20 hard drives” on “20 computers that did not belong to them.”
He also reminded the judge that the key prosecution witness, former top Ontario civil servant and cabinet secretary Peter Wallace, “was unequivocal that had he known all these circumstances, he would not have granted” the special sweeping administrative rights to Livingston when he asked for them.
Defence l awyers made much of the fact that Livingston openly asked for the rights — which granted the user unique access to all 90 of the computers in McGuinty’s office — and that Faist came in during working hours to Queen’s Park, and signed in as a visitor, to do the work.
But Wallace testified he was never told that the sort of administrative access Livingston wanted was unprecedented in the living memory of senior IT people in the premier’s office, and that he’d been misled into believing it was ordinary access.
Gover said Livingston was seeking only to delete personal data, while Hutchison said several times there was “zero obligation to preserve political emails” and that Miller and Livingston “did nothing wrong in deleting these emails.”
At that point, the judge asked, “Are you saying all the emails would not be ( responsive) and would not be required to be produced by freedom- of- information requests or production orders ( by the estimates committee)?”
“Yeah,” Hutchison said, “if they were still around. Yeah, they should have been produced.”
However, in almost the next breath, he said none of them “needed to be retained” in the first place.
The judge will return with his decision on Thursday.