Judge rules there’s still life in the gas plants trial

How much life there remains in the case against David Livingston and Laura Miller is up for grabs, but for the moment, their criminal trial continues.

Ontario Court Judge Tim Lipson Thursday mostly dismissed a defence motion for directed verdicts of acquittal against the two former senior staffers for former Ontario premier Dalton McGuinty.

Livingston was chief of staff to McGuinty, the former premier’s right-hand man; Miller was deputy chief of staff in charge of communications and strategy.

The threshold prosecutors had to meet at this stage is very low, and comparable to the standard required at a preliminary hearing — that there be “some evidence” that a reasonable, properly instructed jury could use to convict.

The standard to actually convict Livingston and Miller is much higher — proof “beyond a reasonable doubt” — which is why it’s unclear yet if the case is merely on life support.

The two are pleading not guilty to mischief to data and unauthorized use of a computer, all charges relating to their alleged destruction of documents about the then-dominant issue for the government — the cancellation in 2010 and mid-election in 2011 of two gas-fired power plants in Mississauga and Oakville.

The cancellation and relocation of the two plants was enormously expensive (estimates are the total cost will top $1-billion) and controversial, the issue dominating McGuinty’s last term, which he cut short when he abruptly resigned in October of 2012.

In the course of making his ruling, Lipson deftly dealt with the giant hole in the prosecution’s case — their failure to lead “admissible forensic expert opinion” on what, if any, data had been actually destroyed by the wiping of 20 hard drives in the former premier’s office.

The two had hired Miller’s spouse, Peter Faist, to do the job, obtained extraordinary computer “administrative rights” for him to use and had the Liberal Caucus Service Bureau pay him $10,000 for his work instead of using the in-house IT unit embedded in the former premier’s office.

But the prosecutors’ proposed tech guru, retired OPP Det.-Sgt. Bob Gagnon, wasn’t qualified as an expert by Judge Lipson, who found that he’d become too enmeshed in the hurly-burly of the OPP investigation itself.

Gagnon, the judge found, improperly had been wearing two hats — one as a keen investigator, the other as a neutral expert — and while the judge questioned neither his expertise nor his willingness to be a fair expert, he said he simply wasn’t able to testify impartially.

As a result, where Gagnon had been expected to point to various deleted emails and documents that referenced the gas plant controversy, and show where and how he’d recovered them, prosecutors were left with milquetoast “admissions” that were fairly meaningless without analysis.

And prosecutors didn’t call another forensic expert, someone who might have reviewed Gagnon’s work and been sufficiently independent to give an opinion.

As a result, as Lipson put it, “There is an absence of evidence that” relevant records existed on the hard drives Faist wiped.

“There is no evidence that such data was in fact destroyed .... No witness said that data, whether in relation to the gas plant related issues or anything else,

had been wiped from his or her computer’s hard drive as a result of the wiping.”

As a result, Lipson in part allowed the directed verdict application on the mischief to data charge, downgrading it to attempt to commit mischief to data.

Last week, faced with the directed verdicts motion, senior prosecutor Tom Lemon dropped the breach of trust charges Livingston and Miller had also been facing, admitting there was no longer a reasonable prospect of conviction.

But for all the comfort defence lawyers Brian Gover and Scott Hutchison may have found in some of Lipson’s words — as Hutchison said outside the Old City Hall courts, “So far, everything in this case is moving in the right direction” — there were other sections in his 15-page decision that may have given them pause.

In his review of the evidence, for instance, the judge noted that the “trier of fact” (this is him, actually) could conclude that Livingston and Miller “were politically savvy and sophisticated” and that a jury could reasonably find that Livingston knew and was becoming increasingly concerned about gas plants documents.

That fictional jury — this is being tried as a judge-alone case — could draw a reasonable inference “that the defendants obtained” the sweeping computer access they got “dishonestly” and that “their motive was to ensure there were no recoverable records that would demonstrate that the defendants and others” did have documents “they claimed not to have” in responding to Freedom of Information requests and a Legislative committee’s production orders.

It was clear, in other words, that the judge has a firm grasp on both the evidence in the case and the lack of it.

The case is now adjourned until next Thursday when defence lawyers will appear briefly before the judge to reveal, as Gover put it outside court, “what the defence will entail from here on in” and whether they will call any evidence.