CUFFS, JAIL, THEN BAIL
Livingston files appeals
Jail, jail, jail: There had to be jail time, the judge said.
He said it — “jail” or, his preferred term, “imprisonment,” as in “term of ” — nine times in his 11-page decision.
Anything less would fail to sufficiently condemn what he called “egregious” conduct which struck “at the heart of the democratic process.”
Anything less would “fall short of adequately denouncing ” what David Livingston had done in “orchestrating the wiping of the hard drives” in the office of former Ontario premier Dalton McGuinty, and would fail to discourage others in government from doing the same.
In fact it was his duty to send Livingston to jail, Ontario Provincial Court Judge Tim Lipson said, as it is the responsibility of the judiciary to protect democratic institutions such as legislative committees.
Thus on Wednesday was the 65-year-old Livingston put in handcuffs and led away, like any other mook at Toronto’s Old City Hall courts — the final note in a shattering fall from grace for a man with a distinguished career who had served for nine months in 2012-13 as the former premier’s chief of staff.
But of the four-month sentence Lipson gave him, Livingston actually spent only about five hours in jail, all of that at the courthouse cells.
No sooner had the judge finished talking than one of Livingston’s lawyers was filing an appeal of both conviction and sentence.
Crown prosecutors, who had asked for a six- to 12-month sentence, nonetheless immediately agreed to bail pending the appeal, showing the same sapling-like backbone they displayed throughout the trial.
The application was formally heard by a single judge of the Ontario Court of Appeal; Livingston was released in the late afternoon. The appeal itself will be argued at an unspecified time in the future.
In other words: jail, schmail. Now, none of this is unheard of or unusual in Canadian courts.
Defendants with the wherewithal to have good lawyers often immediately launch appeals, and sometimes win fast releases for their clients.
Toronto Police Const. James Forcillo, for example, who was sentenced to six years in prison in 2016 in the shooting death of 18-year-old Sammy Yatim, spent a single night behind bars before he was sprung on bail.
(Forcillo went on to breach those bail conditions and was promptly returned to the slammer, where he remains.)
But in a case where denunciation was the single greatest reason for the judge opting for a jail term — to send the message to governments and political actors that they are not the arbiters of what documents can be destroyed — this one grated.
Livingston was convicted in January of the benign-sounding offences of attempt to commit mischief to data and unauthorized use of a computer in the notorious gas plants controversy.
(The former, more minor offence was subsumed at sentencing by the unauthorized use of a computer charge.)
But underlying the charges was what he actually did, which was, the judge found, to deceive the province’s highest-ranking civil servant, former cabinet secretary Peter Wallace, trick him into granting him sweeping “administrative access” to all computers in the former’s premier’s office and then hire the outsider boyfriend of one of his deputies to wipe clean 20 of those computers “to ensure that no records remained” on them that were responsive to Freedom of Information requests or any future production order of a legislative committee.
Livingston was McGuinty’s right-hand man at a time when the controversy surrounding the two cancelled gas-fired plants, in Oakville and Mississauga, was at its height, with opposition parties, legislative committees, activists and media all howling for more information about how and why the McGuinty government had cancelled the plants and how much this crass political calculus would cost Ontario taxpayers. (McGuinty himself was never a target of the investigation into the matter.)
In the end, the Ontario auditor estimated the costs of the gas plants fiasco would top $1 billion.
And Livingston was not a naif, but rather, as Lipson found, a “politically sophisticated government actor who committed this offence because of political expediency, rather than fulfilling his responsibility to conduct himself with the law.”
The judge appeared to find Livingston’s attitude toward recordkeeping and the need to preserve documents for the public good to be both telling and noxious.
Despite being explicitly reminded on multiple occasions, by Wallace and others, of his legal obligations to preserve such records and of a legislative committee’s powers to order that such documents be produced, “Mr. Livingston, however, developed his own ideas early on,” the judge said.
“He called the legal obligation to disclose ‘political bullshit.’ He thought the power of the committee to compel production ‘ridiculous.’ ”
The judge went to considerable lengths to take into account Livingston’s previous sterling character and superb contributions, but said that ultimately, a sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the offender.
“This offence is very serious because it involves an attempt by the defendant to thwart the core values of accountability and transparency that are essential to the proper functioning of parliamentary democracy,” the judge said.
“Mr. Livingston’s plan was to deny the public its right to know about government decisionmaking with regard to the gas plants controversy.”
His conduct, said the judge, was particularly serious because he “abused a position of power and engaged in criminal conduct to promote the interests of the governing party at the expense of democratic accountability.”