Hang on, there’s life yet in gas plants trial

National Post (Latest Edition) - - CANADA - Com­ment Christie Blatch­ford

How much life there r e mai n s in the case against David Liv­ingston and Laura Miller is up for grabs, but for the mo­ment, their crim­i­nal trial con­tin­ues.

On­tario Court Judge Tim Lip­son Thurs­day mostly dis­missed a de­fence mo­tion for di­rected ver­dicts of ac­quit­tal against the two for­mer se­nior staffers for for­mer On­tario pre­mier Dal­ton McGuinty.

Liv­ingston was chief of staff to McGuinty, the for­mer pre­mier’s right- hand man; Miller was deputy chief of staff in charge of com­mu­ni­ca­tions and strat­egy.

The thresh­old prose­cu­tors had to meet at this stage is very low, and com­pa­ra­ble to the stan­dard re­quired at a pre­lim­i­nary hear­ing — that there be “some ev­i­dence” that a rea­son­able, prop­erly in­structed jury could use to con­vict.

The stan­dard to ac­tu­ally con­vict Liv­ingston and Miller is much higher — proof “beyond a rea­son­able doubt” — which is why it’s un­clear yet if the case is merely on life sup­port.

The two are plead­ing not guilty to mis­chief to data and unau­tho­rized use of a com­puter, all charges re­lat­ing to their al­leged de­struc­tion of doc­u­ments about the then­dom­i­nant is­sue for the gov­ern­ment — the can­cel­la­tion in 2010 and mid- elec­tion in 2011 of two gas- fired power plants in Mis­sis­sauga and Oakville.

The can­cel­la­tion and re­lo­ca­tion of the two plants was enor­mously ex­pen­sive ( es­ti­mates are the to­tal cost will top $1-bil­lion) and con­tro­ver­sial, the is­sue dom­i­nat­ing McGuinty’s last term, which he cut short when he abruptly re­signed in Oc­to­ber of 2012.

In the course of mak­ing his rul­ing, Lip­son deftly dealt with the giant hole in the pros­e­cu­tion’s case — their fail­ure to lead “ad­mis­si­ble foren­sic ex­pert opin­ion” on what, if any, data had been ac­tu­ally de­stroyed by the wip­ing of 20 hard drives in the for­mer pre­mier’s of­fice.

The two had hired Miller’s spouse, Peter Faist, to do the job, ob­tained ex­tra­or­di­nary com­puter “ad­min­is­tra­tive rights” for him to use and had the Lib­eral Cau­cus Ser­vice Bureau pay him $10,000 for his work in­stead of us­ing the in-house IT unit em­bed­ded in the for­mer pre­mier’s of­fice.

But the prose­cu­tors’ pro­posed tech guru, re­tired OPP Det.-Sgt. Bob Gagnon, wasn’t qual­i­fied as an ex­pert by Judge Lip­son, who found that he’d be­come too en­meshed in the hurly-burly of the OPP in­ves­ti­ga­tion it­self.

Gagnon, the judge found, im­prop­erly had been wear­ing two hats — one as a keen in­ves­ti­ga­tor, the other as a neu­tral ex­pert — and while the judge ques­tioned nei­ther his ex­per­tise nor his will­ing­ness to be a fair ex­pert, he said he sim­ply wasn’t able to tes­tify im­par­tially.

As a re­sult, where Gagnon had been ex­pected to point to var­i­ous deleted emails and doc­u­ments that ref­er­enced the gas plant con­tro­versy, and show where and how he’d re­cov­ered them, prose­cu­tors were left with mil­que­toast “ad­mis­sions” that were fairly mean­ing­less with­out anal­y­sis.

And prose­cu­tors didn’t call an­other foren­sic ex­pert, some­one who might have re­viewed Gagnon’s work and been suf­fi­ciently in­de­pen­dent to give an opin­ion.

As a re­sult, as Lip­son put it, “There is an ab­sence of ev­i­dence that” rel­e­vant records ex­isted on the hard drives Faist wiped.

“There is no ev­i­dence that such data was in fact de­stroyed…No wit­ness said that data, whether in re­la­tion to the gas plant re­lated is­sues or any­thing else, had been wiped from his or her com­puter’s hard drive as a re­sult of the wip­ing.”

As a re­sult, Lip­son in part al­lowed the di­rected ver­dict ap­pli­ca­tion on the mis­chief to data charge, down­grad­ing it to at­tempt to com­mit mis­chief to data.

Last week, faced with the di­rected ver­dicts mo­tion, se­nior prose­cu­tor Tom Lemon dropped the breach of trust charges Liv­ingston and Miller had also been fac­ing, ad­mit­ting there was no longer a rea­son­able prospect of con­vic­tion.

But for all the com­fort de­fence lawyers Brian Gover and Scott Hutchi­son may have found in some of Lip­son’s words — as Hutchi­son said out­side the Old City Hall courts, “So far, ev­ery­thing in this case is mov­ing in the right di­rec­tion” — there were other sec­tions in his 15-page de­ci­sion that may have given them pause.

In his re­view of the ev­i­dence, for in­stance, the judge noted that the “trier of fact” ( this is him, ac­tu­ally) could con­clude that Liv­ingston and Miller “were po­lit­i­cally savvy and so­phis­ti­cated” and that a jury could rea­son­ably find that Liv­ingston knew and was be­com­ing in­creas­ingly con­cerned about gas plants doc­u­ments.

That fic­tional jury — this is be­ing tried as a judgealone case — could draw a rea­son­able in­fer­ence “that the de­fen­dants ob­tained” the sweep­ing com­puter ac­cess they got “dis­hon­estly” and that “their mo­tive was to en­sure there were no re­cov­er­able records that would demon­strate that the de­fen­dants and oth­ers” did have doc­u­ments “they claimed not to have” in re­spond­ing to Free­dom of In­for­ma­tion re­quests and a Leg­isla­tive com­mit­tee’s pro­duc­tion or­ders.

It was clear, in other words, that the judge has a firm grasp on both the ev­i­dence in the case and the lack of it.

The case is now ad­journed un­til next Thurs­day when de­fence lawyers will ap­pear briefly be­fore the judge to re­veal, as Gover put it out­side court, “what the de­fence will en­tail from here on in” and whether they will call any ev­i­dence.

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