Ontario gas plants trial theatre of the absurd

Judge wants info lawyers agreed he cannot have

Pity Citizen Joe. Pity Joe Public.

Whatever else, Ontarians deserved that the gas plants trial be a full and fair hearing, the usual sort of robust contest a criminal trial in an adversarial system is meant to be.

Instead, what they got Friday was the theatre of the absurd, with the judge clearly desperate for information the lawyers (one side pleased as punch about it, the other not) have agreed he can’t have.

In the end, the court was left with roughly this question: If a tree doesn’t fall in the forest and no one sees it not fall, did it not fall or not?

This trial, in other words, has become not about evidence, but about the absence of it.

David Livingston and Laura Miller, respectively the former chief of staff and deputy chief of staff to former Ontario Premier Dalton McGuinty, are pleading not guilty to charges of breach of trust and data destruction, all in connection to their alleged deletion of documents about the notorious gas plants. Or, rather, they were. The first order of business Friday saw lead prosecutor Tom Lemon announce the Crown no longer had a reasonable prospect of conviction on the breach of trust charges, so he invited the judge to dismiss them.

Lemon didn’t say why this was, of course, because the court knew very well already: Prosecutors had failed to distance their expert tech witness, retired OPP Det.-Sgt. Bob Gagnon, from the investigation, with the result that he couldn’t be considered non-partisan and couldn’t testify as an expert.

In lieu of Gagnon’s evidence, and to avoid having to call other witnesses to testify about the continuity of evidence, the lawyers agreed on what are called admissions.

Friday, they were arguing about what the admissions — bare-bones at best — actually admitted, or didn’t, particularly two volumes of emails that are now an exhibit before Ontario Court Judge Tim Lipson.

These are hundreds of emails, many to or from Livingston and Miller, about the gas plants, the controversy, and the government’s decisions — how to spin the story for the press; how to spin it for the legislature; how to get the controversy to disappear.

The bald coarseness of backroom politics is beautifully laid out here.

One of the most interesting emails is one Livingston sent Miller and other deputies in the premier’s office on Aug. 9, 2012, around the same time the Opposition was losing its collective mind over the issue and then-Energy Minister Chris Bentley’s failure to produce any documents from his office.

(Later, it was learned Bentley’s chief of staff had a practice of deleting every note he got almost as soon as he got it.)

In any case, document retention, or the lack of it, was the central issue at Queen’s Park, and out of the blue, Livingston was writing his deputies about how to permanently delete emails, advising them they didn’t need to “worry” about backup tapes (which backed up premier’s office emails for two weeks, if they weren’t doubledeleted the same day) for Freedom of Information requests because they weren’t used for FOI searches.

Defence lawyers tried to argue this wasn’t an instruction, no sir, just a helpful bit of information from the former premier’s righthand man.

Anyway, the email exhibits are helpfully labelled Volumes 1 and 2 of “Search Warrant Emails,” which surely suggests they were retrieved by police with the authority of a search warrant, which in turn suggests they may have been double-deleted, and recovered elsewhere, though God forbid that ever be said.

But absent a witness to explain it, the admissions appear to admit only that the emails are authentic.

“What do I look for, where do I look for evidence business records were deleted?” the judge cried at one point.

At another, he said, “I did have one question, the actual origin of the emails found in Exhibit 22 … Were the emails recovered from computers?”

Later still, the judge said, “It’s been a mystery to me since those two volumes of emails were filed if there’s an admission about where those emails are taken from. Are they from the hard drives seized by police? From government servers?”

And defence lawyer Scott Hutchison sniffed haughtily in reply, “It does not tell you where any of those emails come from. There is no evidence before you.”

He appeared, at the least, pleased about that.

Prosecutor Lemon, on the other hand, was beside himself, trying to say indirectly what he and his side had agreed not to say directly in the admissions.

Ontarians have spent upwards of $1 billion (or as one clever reader pointed out, 1,000 million dollars) in costs for the cancellation and relocation of the two plants once slated for Mississauga and Oakville.

They are also on the hook for the four-year-long police investigation that ended with the charges laid against Livingston and Miller.

And now they are also paying for this trial, now weeks old. They wuz robbed. Argument about the defence motion for directed verdicts of acquittal on the remaining charges resumes Tuesday.

It’s been a mystery to me since those two volumes of emails were filed if there’s an admission about where those emails are taken from.