Crown’s key witness can’t testify at gas plant trial

The prosecution case against David Livingston and Laura Miller, the former one-two powers in the office of former Ontario premier Dalton McGuinty, suffered a major blow Thursday when a judge ruled the Crown’s key computer witness can’t testify as an expert.

The case, which has been more than two years in the making, consuming significant public resources in the process, is now dramatically weaker.

Livingston and Miller, respectively McGuinty’s former chief of staff and deputy chief of staff, are pleading not guilty to three charges each.

All relate to the alleged deliberate destruction of documents about the McGuinty government’s billion-dollar cancellation of gas plants in Oakville and Mississauga.

Central to making that case was Robert Gagnon, a retired detective-sergeant from the Ontario Provincial Police and the force’s former e-crimes and forensic data expert.

But Gagnon, who was initially rehired by his old force as a technical analyst, went on to become an important figure in the OPP’s two-and-a-half yearlong investigation, called Project Hampden.

As Ontario Court Judge Timothy Lipson pointed out in his 16-page decision, which ruled Gagnon won’t be allowed to give opinion evidence, Gagnon gave investigators advice, legal and strategic; participated in dozens of meetings with the whole team on conference calls or emails; had input into the questioning of one key witness and watched the actual interview from a video room; physically participated in the execution of a search warrant; and even once suggested different charges be laid against Livingston and Miller.

His fatal errors were in once referring to himself as part of the team (“we are golden!” he wrote) and an email he sent Feb. 22, 2015, when he said of Livingston, “… (he) was leaving public service but had to protect his reputation and that of the party for any future employment elsewhere and the parties (sic) future election …”

The question for federal prosecutors Tom Lemon, Sarah Egan and Ian Bell is if the judge’s ruling is fatal, or merely damaging, to their case.

Federal, as opposed to provincial prosecutors were chosen in order to avoid the appearance of a conflict of interest.

While Lipson was kind to Gagnon personally — he said he wasn’t adversarial to defence lawyers and seemed sincere he would testify fairly, but added “the question remains whether he is able to do so” — the judge said his comments about Livingston amounted to “expressed bias David Livingston