Gas-plant trial defence pushes for acquittal
Judge tells Crown to get relevant evidence in order rather than make him guess
Defence lawyers in the deleted documents trial of two former Dalton McGuinty aides are seeking a directed verdict of acquittal as the Crown implies some charges could be dropped.
Taking a page from the Sudbury byelection bribery case, counsel for David Livingston and Laura Miller surprised prosecutors Tuesday with the bid to have the matter dropped before they present a defence.
“The case rests on this,” Crown attorney Tom Lemon said of the push for a directed verdict, which is rare in legal circles.
Livingston, last chief of staff for McGuinty, before the premier resigned, and deputy chief Laura Miller, each face three charges in the alleged wiping of hard drives in the premier’s office before Kathleen Wynne became premier in February 2013.
“It is our position the Crown has failed to lead some evidence in relation to the elements of each of the three,” Livingston lawyer Brian Gover said outside court.
“That is despite having heard evidence for, essentially, three weeks of court time at this stage.”
Although directed verdicts are unusual, one was granted in Sudbury last week. Justice Howard Borenstein found no evidence to support charges two Liberals contravened the Election Act in a 2015 byelection and abruptly ended a trial defence lawyers said was fuelled by political pressure.
The application for a directed verdict in the deleted documents trial will be argued Friday with Justice Timothy Lipson delivering his decision next Tuesday.
Lemon pleaded with the court for more time for his team of three to prepare its case, telling Lipson elements of the presentation will “make a significant portion of argument unnecessary.”
“I’ve been around long enough to understand your coded language,” Lipson replied.
Gover said the remark from the judge is a reference to the Crown preparing for the “dropping one or more of the three charges.”
Lipson set out clear expectations for the prosecutors.
“I would like you to set out in some detail the evidence that you’re relying on,” he told Lemon, citing a heavy load of documents submitted as exhibits in the case, including two volumes of emails that have not been explored in court.
“If this is going to be done properly you can’t expect me to guess which emails are relevant and which are not.”
The Crown suffered a setback last month when Lipson ruled a retired OPP officer who did computer forensics tests on hard drives seized from the McGuinty premier’s office was too close to the Ontario Provincial Police investigation to appear in court offering an opinion as an expert witness.
Livingston and Miller have pleaded not guilty to breach of trust, mischief in relation to data and misuse of a computer system.
The criminal charges carry a maximum penalty of 10 years in prison.
McGuinty resigned with his minority government under legal pressure to produce documents on the controversial cancellations of gas-fired power plants in Oakville and Mississauga before the 2011 provincial election.
The documents trial is being closely watched for political fallout with a provincial election looming next June 7.