Crown seeks jail term in gas plant case
Defence argues for conditional discharge
Prosecutors are seeking time behind bars — what one of them called “real jail” — for David Livingston, a man his friends, former colleagues and family described as a gentle and generous exemplar of virtue.
Lawyers were making submissions Monday at a sentencing hearing for the 65-yearold Livingston, the former Dalton McGuinty chief of staff convicted last month of two charges in the deliberate destruction of documents in the notorious gas plants trial.
The decisions to cancel the two gas- fired plants in Oakville and Mississauga — the former was cancelled in 2010, while the cancellation of the latter came during the 2011 provincial election — will cost Ontario taxpayers more than $1 billion over the next two decades, according to the provincial auditor.
And the issue of the public gaining access to documents detailing those decisions, whether by opposition or media demands either in committees or by Freedom of Information requests, was the single defining issue of those years.
Though Livingston was convicted of attempted mischief to data and unauthorized use of a computer, the former charge was redundant ( the underlying facts were the same in both) and covered by the latter charge, so it was dropped.
The two sides arguing before Ontario Court Judge Tim Lipson are far apart: prosecutors are seeking six months in jail, while lawyers for Livingston are asking the judge for a conditional discharge.
It would mean that after abiding by certain conditions for a prescribed time in a probation order, Livingston would not be left with a formal criminal record.
A conditional discharge is still considered “evidence of guilt,” however, and could impact Livingston’s ability to travel to his vacation home in the United States.
He sat quietly in his chair, as he did throughout the trial, largely unreadable.
But occasionally, as when several of his character references wept as they spoke of the man they love, he offered a sweet, lopsided smile in thanks.
It was his brother- in- law, friend and business partner Elliott Kerr — he founded the athlete representation and sports marketing agency Landmark Sport Group and owns the Mississauga Steelheads, a team in the Ontario Hockey League, with Livingston — who arguably had the toughest time.
Kerr’s wife, and Livingston’s sister, Jane died of colon cancer less than two years after the couple’s twins were born, and Kerr wiped tears as he talked about Livingston’s tender — and enduring — care of Jane, him and their family.
“I love David so much,” he said at one point. “He is a beautiful person who has enriched the lives of so many.”
When he left the witness stand, Livingston gave him one of his crooked smiles.
His lawyers, Brian Gover and Fredrick Schumann, read aloud many of the 27 character letters, including from Livingston’s wife of more than four decades, Anne Grittani, and their daughter Megan Pollock.
Pollock lives in British Columbia; Grittani was present, but like her husband, seemed shattered by the conviction.
The couple’s other daughter, Emma Livingston Cook, who lives in Toronto, read aloud her letter about her dad, and like her mother, spoke about the toll the last four-plus years have taken on him.
They described a deeply private person, who took on the chief of staff job only because then premier McGuinty had asked him and who didn’t even belong to a political party, for whom the publicity and media scrutiny have been excruciating.
All of those who spoke or wrote in Livingston’s support asked the judge, in essence, to consider “the good he’s done in his life,” as youngest daughter Livingston Cook put it.
The group included business executives, prominent lawyers, figure skater Dylan Moscovitch (who won a silver medal in pairs at the Sochi Olympics, and whom Livingston financially supported), and those who have served on charitable boards with Livingston, a former TD Bank senior executive. Many of them credited him with making Infrastructure Ontario, where Livingston worked before taking on the job with McGuinty, the fiscally responsible, successful organization it is.
Prosecutor Tom Lemon didn’t quarrel with Livingston’s “otherwise good character,” but told the judge, “That only goes so far.”
He reminded the judge that Livingston was McGuinty’s designate and said he thus stood “in a position of trust.”
Essentially, what Lipson found in his decision last month was that Livingston quietly had arranged for unprecedented access to all the computers in the thenpremier’s office, lied by omission to the province’s top civil servant that this was indeed what he was after, then hired the boyfriend of a deputy to come in and wipe about 20 hard drives.
Livingston was the chief of staff in McGuinty’s office during the final turbulent months of the premier’s last term in the fall of 2012 and through the transition period in early 2013, when Kathleen Wynne took power.
McGuinty, who abruptly resigned in October of 2012 amid continuing opposition howls for gas plant document production from his government — that had been going on for months — was never implicated in what Lipson once said was a scheme to ensure “no records (about the gas plants) could be retained.”
Gover will complete his submissions Tuesday, with the judge expected to reserve his decision. No one would envy him the task, answering the questions judges so often face: How do you measure a man’s life and weigh a single transgression against decades of good work? How do you balance the duty to exercise restraint with the need to denounce bad conduct?