Judge re­jects de­fence bid to have charges dropped in gas plants trial,

Rul­ing says a jury could ‘rea­son­ably con­clude’ ac­cused ‘in­tended to de­stroy data’


The deleted doc­u­ments trial of two key Dal­ton McGuinty aides will con­tinue after a judge ruled some ev­i­dence raises the pos­si­bil­ity of a con­vic­tion in the case stem­ming from the can­cel­la­tion of gas-fired power plants.

In re­ject­ing a de­fence bid for a di­rected ver­dict of ac­quit­tal, Jus­tice Ti­mothy Lip­son said a jury could “rea­son­ably con­clude” the de­fen­dants “in­tended to de­stroy data” and “fraud­u­lently ob­tained” a spe­cial pass­word to do so.

That is not a find­ing of guilt, Lip­son stressed in a 15-page rul­ing that took 45 min­utes to read Thurs­day in the On­tario Court of Jus­tice at Old City Hall.

“The test . . . is whether there is ev­i­dence upon which a prop­erly in­structed jury could, not would, ra­tio­nally con­clude that the ac­cused is guilty beyond a rea­son­able doubt.”

Lawyers for former McGuinty chief of staff David Liv­ingston and deputy chief Laura Miller had ar­gued prose­cu­tors, who dropped two counts of breach of trust last Fri­day, failed to present enough ev­i­dence to pro­ceed with the re­main­ing charges.

The de­fen­dants have pleaded not guilty to mis­chief in re­la­tion to data and mis­use of a com­puter sys­tem in re­la­tion to com­puter hard drives wiped in the McGuinty pre­mier’s of­fice be­fore Kath­leen Wynne took over as pre­mier in Fe­bru­ary 2013.

At the time, McGuinty’s mi­nor­ity Lib­eral gov­ern­ment was sub­ject to an or­der from an op­po­si­tion-dom­i­nated leg­isla­tive com­mit­tee of MPPs to pro­duce files re­lated to the con­tro­ver­sial de­ci­sion to scrap gas­fired power plants in Oakville and Mis­sis­sauga be­fore the 2011 elec­tion.

The judge, how­ever, down­graded two of the four charges to at­tempted mis­chief in re­la­tion to data. He cited “an ab­sence of ev­i­dence” that im­por­tant records were on the wiped hard drives.

De­fence lawyers cau­tioned against read­ing too much into the judge’s de­ci­sion, given that the bar for con­tin­u­ing a trial is far lower than the “proof beyond a rea­son­able doubt” re­quired for a fi­nal ver­dict. “The Crown walked away from the breach-of-trust charge after the di­rected ver­dict mo­tion,” Miller’s lawyer Scott Hutchi­son told re­porters. “His Hon­our has now re­duced one other charge. So far, ev­ery­thing in this case is mov­ing in the right di­rec­tion.”

The le­gal teams will re­turn to court next Thurs­day to dis­cuss briefly how the case will pro­ceed. The trial is then slated to con­tinue for a day on Nov. 22 and on more days in Jan­uary.

“We’ll have to take the judge’s care­ful de­ci­sion into con­sid­er­a­tion and we’ll de­ter­mine what the de­fence will en­tail from here on in,” said Liv­ingston’s lawyer, Brian Gover, who was re­lieved that the breach-of-trust charge is off the ta­ble.

“The breach of trust car­ried with it a great stigma, be­cause it in­cluded that el­e­ment of a cor­rupt pur­pose.”

In his de­ci­sion Thurs­day, Lip­son found a jury could con­clude some emails au­thored or re­ceived by Miller and Liv­ingston were of “long-term busi­ness value which should have been re­tained,” par­tic­u­larly for Free­dom-of-In­for­ma­tion re­quests.

On the pass­word ob­tained to ac­cess com­put­ers to delete hard drives against the in­stinct of then-cabi­net sec­re­tary Peter Wal­lace, the judge said “a jury would be en­ti­tled to rea­son­ably con­clude that Mr. Liv­ingston dis­hon­estly ob­tained ad­min­is­tra­tive rights . . . un­der false pre­tenses and with­out le­gal jus­ti­fi­ca­tion.”

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