Ex-cop’s role in investigation key as Ontario gas plants trial begins
In the same Old City Hall courtroom where lawyer Marie Henein once tossed bombshell after bombshell in her successful defence of Jian Ghomeshi, her law partner Scott Hutchison Friday delivered one of his own.
Hutchison was crossexamining Robert Gagnon, the prosecution’s proposed computer expert, on the first day of the so-called gas plants trial.
Gagnon retired from the Ontario Provincial Police in 2009 as the force’s leader of the e-crime section and computer forensic guru. He was re-hired by the OPP in May of 2014 on an untendered contract to work as a technical analyst in the gas plants probe.
Hutchison represents Laura Miller, former deputy chief of staff to former premier Dalton McGuinty, who with former chief of staff David Livingston, is pleading not guilty to breach of trust, mischief in relation to data and unauthorized use of a computer. The two are alleged to have deliberately destroyed documents at the very time the McGuinty government was under growing pressure to produce documents related to the controversial cancellation of the two gas plants in Oakville and Mississauga.
Hutchison carefully built up a case showing that Gagnon was too deeply involved in the OPP investigation, dubbed Project Hampden, to be “sufficiently independent and impartial” to give his opinion.
Unlike other witnesses, those who are qualified by the court as “experts” are allowed to give opinion evidence.
That’s precisely what Hutchison and Brian Gover, who represents Livingston, don’t want him to do.
A 2017 case called R v McManus from the Ontario Court of Appeal suggests that while police can of course testify as experts, they shouldn’t also be acting as investigators. And a 2015 Supreme Court of Canada case spells out that expert witnesses should be independent and impartial.
Hutchison said the defence wasn’t quibbling with Gagnon’s qualifications — he has the training and experience — but rather that his enmeshment into the investigative team compromised his impartiality.
About 30 times, Hutchison made the walk from the defence bench to the witness box to show Gagnon emails he’d sent or been sent by OPP officers running the case.
Painstakingly, he built his argument that Gagnon was “a part of the team.”
He showed that, as a retired cop, Gagnon worked more hours than he could be paid for as a former public servant (Gagnon agreed he had “donated” time to the case); that he’d several times provided opinions for detectives running the case; that he’d participated in multiple conference calls with team leaders and Crown prosecutors and that he had even participated in person in the execution of a search warrant carried out on the Ontario government’s cyber security branch.
But Hutchison, as good lawyers do, saved his bombshell for his last question.
First, he established that the investigation into Miller and Livingston was early on deemed by the police in charge to be a breach of trust case. “Yes sir,” said Gagnon. “That changes as a result of some information from you, doesn’t it?” Hutchison asked. “Yes,” said Gagnon. On Feb. 22, 2015, Hutchison said, “You write to the leaders of the investigation proposing a different charge?”
“Different or additional, yes,” said Gagnon, agreeing that he had pointed out the additional charge — mischief in relation to data — given his own theory of what had happened, and even spelled out the appropriate section of the Criminal Code.
Miller and Livingston weren’t charged until December 2015 and, when they were, the “mischief to data” charge was there.
“Those are my questions,” Hutchison said, and sat down.
The lawyers won’t make arguments on the issue until Monday.
It’s certainly possible that senior prosecutor Tom Lemon will be able to persuade the judge that most of Gagnon’s involvement is due to the fact that he possesses highly specialized technical knowledge, and that his expertise was required by investigators as they conducted search warrants and interviews.
It’s also clear from his day in the witness stand that Gagnon is not prickly or combative, but rather agreeable and straightforward. He was unfailingly civil. But his presence at the execution of one of the OPP search warrants and his admission that he was essentially volunteering unpaid time to the case raise significant questions about his neutrality as an expert.
Lemon acknowledged this when he told the judge, who has promised a decision next Wednesday, that “your ruling is important in terms of the case, and it does have consequences.”
Prosecutors allege, as Sarah Egan said in an opening statement Friday before the voir dire into Gagnon’s role began, that this trial isn’t about “an inadvertent failure to preserve documents” but “the intentional destruction of data for the purpose of thwarting the public’s right to accountability and transparency.”
Emails, she said, will show that Livingston instructed his staff how to “double delete” emails so that “there was nothing available to be turned over either to a Legislative committee or in response to an FOI (Freedom of Information) request.”
And Livingston did this, she alleged, despite a stern warning from Dave Nicholl, chief information officer for Ontario, that he should preserve email accounts and records related to the gas plants issue.
The very next week, Egan said, the third party hired by Livingston and Miller, Miller’s spouse Peter Faist, “began wiping the hard drives.”