‘Tense’ times recalled in gas plant scandal
Picture this.
It was the summer of 2012 and Peter Wallace, then Ontario’s most senior public servant, had his knickers in a knot, though being a deliciously straight arrow in the best traditions of public servants, he did not put it that way.
“It was a period of considerable tension,” he told Ontario Court Judge Timothy Lipson Monday as the criminal trial of David Livingston and Laura Miller resumed after a two-week break.
Livingston and Miller, once respectively the onetwo power punch in the office of former Ontario premier Dalton McGuinty, are pleading not guilty to three charges each, all related to the alleged deliberate destruction of documents about the McGuinty government’s billion-dollar cancellation of two gas plants in Oakville and Mississauga.
With an Opposition-controlled Legislative committee howling for documents about that decision, the Ontario Power Authority (then a government agency responsible for the gas plant contracts) and the Ontario public service had complied and were still producing more disclosure.
But, alas, the minister of energy, then Chris Bentley, and his office had told the committee it had no relevant documents.
That, as Wallace said in his polite way, “was not particularly credible,” given the volumes of disclosure that was coming from the public service.
“The issue of documents and disclosure to the committee was a dominant issue in cabinet” and a “central focus in the premier’s office.”
At first, Wallace said, the initial response from the public service and the OPA was to question whether the demanded disclosure was “fully required.”
To that end, he consulted a number of lawyers, inside and outside government, and “the universally clear answer was that the order (from the committee) took precedence” to everything else — privacy legislation, solicitor-client privilege, commercial confidentiality.
“From a legal perspective,” Wallace said, “there was absolutely no choice. We were required to provide without question the requested disclosure.”
Yet there he was, stuck with this “stark contrast” between the response of the public service and the political side of government.
It was, as he said, a hugely tense time, what with the opposition parties baying and the gas plants issue all over the news, an enormous amount of disclosure from the public service, yet curiously, none from the energy minister or other “political actors.”
“I am quite frankly very concerned that the office of the premier had not understood or wilfully ignored the legal requirements” of the committee’s order, Wallace said.
(The committee hadn’t made specific requests of McGuinty’s office, but Wallace’s concern was that the message about how important this stuff was clearly hadn’t penetrated anywhere on the political side.)
So with the help of other senior public servants and lawyers, Wallace prepared three briefing notes that would make the obligations as crystal clear as he could — spell out that the energy minister and his office had to disclose their documents, that they could explain to the committee there were some that might be protected for privacy or commercial reasons, and that there were legal requirements for government to retain some records, that this was “not optional.”
In August that year, Wallace met Livingston with the express purpose of telling him all this, even though, as Wallace said, “this was probably not new information” for him. “This was not news, but confirmation of what was already broadly known.”
As McGuinty’s chief of staff, Livingston and Wallace had almost daily meetings as a matter of course, and got along, Wallace said, “very well.”
As the Secretary of Cabinet, a job that supports the government and premier of the day and implements government policy, Wallace formally reported to the premier.
But, he said, practically, “on day-to-day matters,” it was the premier’s chief of staff, Livingston, he dealt with and met frequently. And the two men knew one another from earlier days, when Livingston was head of Infrastructure Ontario and Wallace held other senior posts.
He also knew Miller, the deputy chief of staff, and the two of them met regularly, too.
Now, Wallace was worried: The OPA had “provided an immense amount of disclosure; the ministry had as well … but the minister and the office of the minister said they had no documents whatsoever … We know we sent them an enormous number of documents.
“I am acutely worried the office of the premier and the minister of energy are not in compliance with a lawful order,” Wallace said.
“It was very uncomfortable for me … the government of the day was not understanding the power of the committee.”
So, armed with the briefing notes he believed were redundant yet apparently necessary, Wallace met Livingston.
“It was a tense conversation,” Wallace remembered. “I’m saying, ‘You’re not in compliance.’ ”
And what was Livingston’s reaction, prosecutor Tom Lemon asked.
“I don’t think he found the conversation particularly helpful,” Wallace said. “His language was, ‘That’s political B.S.’ ”
At some point around this time, Wallace said, Livingston approached him “to ask about the mechanics of records retention,” for instance what, if an email is deleted, is “the way to ensure it is not captured in some archival process” or backup.
Wallace duly asked someone to give him a briefing on that. After all, as he said, “This was an administrative question,” and that was part of his job.
Wallace’s testimony continues Tuesday.
Luckily for the City of Toronto, he is now the city manager.