Crown may drop some charges in gas plants trial
Crown prosecutors in the Ontario gas plants trial are now deciding whether to drop some of the charges against David Livingston and Laura Miller.
The shocking revelation came Tuesday, immediately after lead prosecutor Tom Lemon closed his case.
Defence lawyer Brian Gover, who represents Livingston, stood to ask Ontario Court Judge Tim Lipson for “directed verdicts of acquittal” on each of the three charges the two are facing.
Lawyer Scott Hutchison, who represents Miller, said he was joining in Gover’s request.
Lemon then said he would like some time to assess the case, which would, he told the judge, likely save the court some argument and time.
“I’ve been around long enough to understand your coded language,” Lipson said, adding, “I take it you’re making some serious decisions … about where this case is going for the prosecution.”
On another occasion, the judge referred to Lemon having to “make a decision what (charges) you’d like to proceed on.”
He also told the prosecutor it would be helpful if he could refer to “the evidence you’re relying on” for each offence, and mentioned two bound volumes of emails that were made an exhibit but have received only passing mention.
“You can’t expect me to guess what emails are relevant and fit into the big picture,” the judge said.
Respectively the chief of staff and deputy chief of staff to former Ontario Premier Dalton McGuinty, Livingston and Miller are pleading not guilty to breach of trust, mischief to data and unauthorized use of computers.
All relate to their alleged destruction of documents in the government’s controversial decisions, made in 2010 and mid-election 2011, to cancel two gas-fired plants in Mississauga and Oakville.
A directed verdict of acquittal means prosecutors have failed to produce “some evidence” — minimal evidence, in other words — of the essential elements of an offence.
Every criminal offence has two elements that must be proved, in Latin the actus reus (the act itself ) and the mens rea (the requisite guilty mind).
For instance, if a stranger elbows you on the street, that could be assault, in that there is evidence of the act.
But if it was unintentional, then the person didn’t have the required state of mind.
A directed verdict of acquittal is exactly what happened in the recent trial of Pat Sorbara, former deputy chief of staff to Ontario Premier Kathleen Wynne, and Gerry Lougheed, a local Liberal fundraiser.
They were charged with bribery under the Election Act, but on Oct. 24 in a Sudbury court, Ontario Court Judge Howard Borenstein dismissed the charges for lack of evidence.
The prosecution in the gasplants trial has been troubled from the get-go.
Central to making the case that Livingston and Miller had deliberately deleted documents was the anticipated testimony of retired OPP Detective-Sergeant Bob Gagnon, the force’s tech guru.
He was to testify as an expert witness — meaning he would be able to give his opinion, for instance, about what it means when data is recovered in the “sync folder.”
But Hutchison strongly challenged Gagnon’s independence from the investigation.
Expert witnesses can’t wear two hats at the same time, and Hutchison successfully made the case that Gagnon had.
Even as prosecutors knew he was going to be their star and that the law about expert witnesses was becoming tighter, no one pulled the reins in on Gagnon from becoming increasingly involved in the OPP probe itself, called Project Hampden. He attended one scene when a production order was executed; he sometimes offered detectives advice; he was included in conference calls and meetings.
Given that lawyers were embedded within Project Hampden, it is astonishing that none of them saw this particular train wreck coming.
The judge ruled that Gagnon couldn’t testify as an expert.
Prosecutors made an aborted effort to have him testify as a “fact” witness, but that was called off in short order.
Instead, they ended up putting a milquetoast agreed statement of fact into evidence in lieu of Gagnon’s testimony: It said he had recovered about 632,000 files that had been deleted from 20 computers in McGuinty’s office and that 400 of them were “user-created.”
What those numbers actually mean is anyone’s guess; the judge certainly hasn’t been told.
Nor did he hear that Gagnon had recovered about 320,000 emails from those same 20 computers — including Livingston’s and Miller’s — and that only 102 of them dealt with the gas plant controversy, a stunning fact given that the controversy was easily the biggest hot potato the McGuinty government faced.
That information was contained in an OPP “Information to Obtain,” a production order Postmedia went to court to obtain last week. Neither it nor the cautioned statements Livingston and Miller gave police on which it partially relies are before the judge.
Still, while the breach of trust charge may be difficult for prosecutors to argue, the judge has heard plenty of evidence that Livingston and Miller acted curiously.
In January of 2013, with the McGuinty government almost out the door and the Wynne regime on the way in, they went to extraordinary lengths to get special administrative rights that would allow access to all 90 computers in McGuinty’s office.
They hired an outsider — Miller’s boyfriend Peter Faist — to do the job, despite the fact he wasn’t a government employee or security-cleared.
And they did this though there was a dedicated IT unit embedded within the premier’s office, whose members, as some of them testified, routinely wiped hard drives for departing staffers, especially during a transition.
The lawyers return to court Friday, where prosecutor Lemon will update the judge on what he’s decided, and the lawyers will argue the motion for directed verdicts.