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.”