Was destroyed data personal or not?
Justification for wipe defies common sense
The contention by David Livingston and Laura Miller and their lawyers that they hired someone to wipe 20 computers in the office of former Ontario premier Dalton McGuinty merely to delete personal information is nonsense, a prosecutor says.
“That’s an artificial interpretation of the evidence divorced from the surrounding events,” federal Crown Tom Lemon told Ontario Court Judge Tim Lipson Wednesday.
He was making f i nal submissions in the trial of Livingston and Miller, both of whom are pleading not guilty to attempted mischief to data and authorized use of a computer.
The charges relate to the pair’s alleged attempted destruction of emails and documents relating to the billion- dollar gas plants scandal.
Livingston was McGuinty’s chief of staff, the most powerful man in the premier ’ s office, Lemon noted, Miller one of the deputy chiefs. “Why is the highest-ranking person in the office concerning himself with wiping personal information from all these computers?” Lemon asked.
And how, he pointed out reasonably, “could anyone” but the individuals whose computers were wiped know what was to be kept?
Personal documents, photos and the like, Lemon said, “the individual would want to make that determination themselves” — or at least have the choice.
Some of the staffers in the former premier’s office, the court has heard, weren’t even aware that Miller’s life partner, Peter Faist, had been hired to come in and wipe clean their hard drives in early 2013, when the McGuinty government was transitioning to the Kathleen Wynne government.
“To suggest these accused took the extraordinary steps” they did, merely to make sure no one’s baby photos or passport information inadvertently remained on a computer that might be used by someone working for the next government, defies common sense, Lemon said.
And as the judge asked once during a defence submission, why on earth would the Liberal Caucus Services Bureau have forked over $ 10,000 to Faist when the IT unit embedded in the premier’s office surely could have done the job but wasn’t even asked about it?
Neither, Lemon s ai d, could Livingston and Miller argue they were also making sure political or party information remained.
Some of the emails recovered by t he Ontario Provincial Police and now evidence at trial — where Livingston and Miller and others in the former premier’s office discuss with brusque the gas plant problem — show how the political and government business routinely mix.
As Lemon put it, “Any decision a government makes takes into account political consequences; that doesn’t make it a ‘political’ decision’” that need not be preserved.
The only reasonable and logical inference, Lemon said, is that Livingston and Miller wanted to ensure there were no potentially embarrassing- t o- t he- McGuinty-administration documents left behind.
But Brian Gover and Scott Hutchison, who respectively represent Livingston and Miller, argued their clients should be acquitted.
G over s aid while t he Crown’s case “barely scraped over the very low standard” of proof required in his recent partially successful directed acquittal application, the proof required for conviction is much higher — proof beyond a reasonable doubt.
And as Gover pointed out, when the Crown met that hurdle a few weeks ago, “part of the case was left behind,” a reference to the fact that while Lipson wouldn’t direct the two be acquit- ted, he reduced the mischief charge the two originally faced to attempted mischief.
As well, earlier in the trial, Lemon conceded he had no reasonable prospect of conviction on the breach of trust charge the pair was once also facing.
Gover ’ s “core submission,” as he called it, was that Livingston and Miller weren’t trying to destroy documents they were required to keep, but rather cleaning the computers of departing staffers of personal and political data.
He also criticized former secretary to cabinet Peter Wallace, a key Crown witness who testified essentially that if he’d known what Livingston was going to do, he would never have granted him the sweeping administrative access ( this allowed Faist to wipe the 20 hard drives) in the first place.
“He was a self- interested witness,” Gover said, “who has reviewed events and characterized them according to his self-interest.”
In fact, Gover and the judge had a lengthy exchange about Wallace’s evidence and what it meant or didn’t.
Wallace acknowledged that his assistant had told him Livingston had mentioned that Miller’s partner might be doing the wiping, but, Wallace said, that was so out of the norm he didn’t take it seriously or ever really contemplate Livingston would use a non- securitycleared outsider.
Yet prosecutors inexplicably didn’t call that assistant, Steen Hume, as a witness, with the result, the judge said, that he was left with “an interesting issue” — only the third- hand, or hearsay, report of what a witness said on a critical point.
“I’ve never had one quite like it,” the judge said. “I’ve never seen this.”
“Neither have I,” said Gover, and reminded the judge that the question is, “Who bears the burden of proof in this courtroom?”
The judge will return with his decision Jan. 19.