Grits face trials and tribulations

Judge accepts that size and complexity of case help explain delay in going to trial

It’s a busy time in Ontario politics.

With approximately nine months remaining before the next election, the legislature is sitting again after its summer break and there are two criminal trials involving Liberal party figures.

The first, already in progress in Sudbury, revolves around dealings related to a byelection nomination. The second, involving charges of breach of trust and mischief against party staffers David Livingston and Laura Miller, was to have commenced Monday in Toronto.

Except that, as Christie Blatchford reports, those proceedings got off to a creaking start with a oneweek pause ordered by the judge so defence counsel could go over material recently disclosed by the prosecution.

As David Reevely writes, all of this is occurring while a long list of ministers are racing around the province for re-announcements of programs and grants.

New Democrats, he adds, are trying to keep the public’s attention on the trials, while Conservatives prefer to keep the conversation focused on Liberal government failures and hope that a smooth nomination for star candidate Caroline Mulroney will take some heat off the Tories’ own previous candidate-selection fiascoes.

More than four years in the making and much anticipated by political foes of the Ontario Liberal government, the so-called “gas plant” trial got off to a creaky start Monday.

Two former senior aides to then-premier Dalton McGuinty, David Livingston and Laura Miller, are each pleading not guilty to breach of trust, mischief and unauthorized use of a computer, all in relation to the alleged destruction of documents central to the Liberals’ decision in 2011 to cancel two gas plants in Oakville and Mississauga.

As compared to another trial involving provincial Liberals that started last week, the Elections Act violations case in Sudbury, this one, as a criminal trial being heard at Old City Hall in Toronto, is the more serious.

The two gas plants were recontracted and relocated at an estimated cost that could hit $1 billion.

The decision wasn’t just enormously expensive, but also controversial, and though McGuinty and the Liberals were narrowly re-elected, the lasting political fallout and government stalling to produce documents saw two Conservative MPPs finally make a formal complaint to the OPP in 2013.

That in turn led to an investigation that lasted more than two years and resulted in Livingston, McGuinty’s former chief of staff, and Miller, his former deputy chief of staff, being charged in December 2015.

Ironically, the 20-month delay from charge to the start of trial comes despite the fact that the case was subject to case management, a process designed to ensure that matters move along at a reasonable clip.

Now, things have stalled yet again — the trial likely will begin next Monday, but could be delayed longer — as lawyers for Livingston and Miller have alleged inadequate, incomplete and late disclosure from Crown prosecutors.

Disclosure is the ongoing Crown obligation to give defence lawyers all the information and documents they need to fully meet the charges their clients are facing.

As Scott Hutchison, who represents Miller, told Ontario Court Judge Timothy Lipson Monday, “that obligation is to honour a constitutional right,” the charter right to make “full answer and defence.”

But as the judge noted, neither Hutchison nor Brian Gover, who represents Livingston, is “alleging oblique motive … or alleging misconduct” by prosecutors.

Rather, the lawyers complained that prosecutors have been slow in giving them notes of recent “witness preparation” interviews, some of which were two or three times as long as the original OPP interviews; that in some cases, police notes were non-existent or cryptic; that when witnesses produced new documents in these preparation interviews, there was no explanation of how they came to do so; that the Crown’s key witness, a computer forensics expert and former OPP officer named Robert Gagnon, has recently produced expanded or revised opinions, which has meant defence lawyers have to scramble to test and perhaps counter the new evidence, and that prosecutors have cut in half the number of witnesses they will call to testify.

Indeed, Gover suggested that the lengthy re-interviewing of witnesses is nothing but “an information-gathering exercise. The Crown is re-investigating the case, with little disclosure.” But the case is monster-sized. The volume of recent disclosure alone is staggering — more than 25,000 pages of raw data that underlie the Crown expert’s report, 23,000 pages of emails and 600 pages of new documents various witnesses produced in the new interviews.

As Gover told the judge, that’s enough for a whole new case right there.

But such huge and technical cases also significantly increase the burden upon prosecutors and police — who have to review the material, determine what must be disclosed and what ought not to be, make redactions if necessary, copy the whole kit and caboodle, and get it to defence lawyers — and it appeared the judge was mostly satisfied that the delays were regrettable, but not the product of misconduct.

Prosecutor Lemon, for example, explained why 13 witnesses on the original list now weren’t going to testify.

One employee’s boss is being called, not the employee; “He’s the decision-maker,” Lemon said. Another had never given a statement to police and wasn’t willing to do so. Others would have duplicated evidence prosecutors say they will get from the horse’s mouth.

“That sounds like the normal sort of assessment the Crown makes of his case,” the judge said.

Prosecutors also agreed off the top to a week’s adjournment.

But Lipson did caution prosecutors and the OPP that “any new interviews” of witnesses “should be done carefully, with careful note-taking. … It would be very unfortunate if we had to repeat this exercise.”

Court will reconvene Thursday, to ensure the trial is on track to start next Monday.

The volume of recent disclosure alone is staggering — more than 25,000 pages of raw data that underlie the Crown expert’s report.