Gas-plants judge disqualifies key Crown ‘expert’ witness as non-independent

The case against two former top political aides in Ontario accused of illegally destroying emails in the premier’s office took a serious blow Thursday when the judge ruled a key prosecution witness could not testify as an expert.

The witness, a former provincial police officer, was simply too close to investigators and the investigation known as Project Hampden to offer impartial evidence as legally required, Ontario court Judge Timothy Lipson ruled.

Lipson noted Robert (Bob) Gagnon, a retired police computer specialist, was integrally involved in investigating and prosecuting David Livingston and Laura Miller, even at one point suggesting one of the three charges laid against them. The pair has pleaded not guilty.

“There really was no separation between Mr. Gagnon and the Project Hampden investigators,” Lipson said. “Over time, he became an important member of the Project Hampden team.”

The prosecution had wanted Gagnon to testify as an expert witness against Livingston and Miller, chief of staff and deputy to former Liberal premier Dalton McGuinty. As an expert, he could have offered his opinion on the evidence. But the defence said he didn’t meet the test of independence, impartiality and freedom from bias.

It cited his extensive involvement in the probe virtually from the start, when investigators set him up with a separate computer forensics laboratory at provincial police headquarters.

The separate facility, Lipson said, was an appropriate step, but turned out to be the “only one.” His involvement “expanded rapidly over time” to the point where he became an important resource for the investigative team, the judge said.