Expert poses difficulty for Crown

Unexpected turn in gas plants trial

The prosecution’s proposed computer expert in the gas plants trial believed one of the two people accused in the case “had to protect his reputation and that of the (Ontario Liberal) party.”

The revelation came Tuesday at Ontario Court as lawyers argued about whether the proposed witness, a retired Ontario Provincial Police officer, was so close to the investigation that he fatally compromised his independence as an expert.

Prosecutors say he did not, and urged Judge Timothy Lipson to first hear former OPP detective- sergeant Robert Gagnon’s testimony and then determine if he’s a neutral and fair witness or not.

But defence lawyers say Gagnon was too enmeshed in the probe, called Project Hampden, and too caught up in its collective mindset, to now be able to divorce himself from the team and testify independently — or even to qualify as an expert.

As lawyer Scott Hutchison put it once, “For two and a half years, ( Gagnon) wore the Project Hampden sweater.”

For him now to be put forth as an impartial expert, Hutchison said, is akin to expecting a 30- year veteran of the Montreal Canadiens to abruptly put on a striped jersey and fairly “referee a game between Montreal and the Leafs.”

In an email sent to OPP investigators on Feb. 22, 2015, Gagnon suggested new charges be considered against David Livingston and Laura Miller.

( As it turned out, detectives were already considering those charges.)

The two were respectively then Ontario Premier Dalton McGuinty’s chief of staff and deputy chief of staff at the time that two gas plants in Oakville and Mississauga were cancelled and relocated at enormous public expense.

Gagnon appeared to be suggesting a motive for why Livingston might have wanted emails and documents relating to the cancelled plants to disappear.

“Livingston was leaving public service,” Gagnon told the Project Hampden team, “but had to protect his reputation and that of the party for any future employment elsewhere and the parties (sic) future election.”

If such a view was probably as common as mother’s milk at Queen’s Park at the t i me, and perhaps even among a cynical electorate, it is a problematic state- ment from an expert at a time when expert witnesses are being held to ever- higher standards by Canadian courts.

As Hutchison told the judge Monday of the email, “For two and a half years, that was (Gagnon’s) mindset, and that is not the way an independent and impartial expert witness comes to court.”

Gagnon spent most of his 30-year career with the OPP as its technical or e-crime expert. He retired in 2009, but was brought back as a consultant in May of 2014 when the force began investigating the destruction of emails and documents relating to the cancellation of the two plants.

By then, former privacy commissioner Ann Cavoukian had done an investigation of her own, and concluded that at the least staff in McGuinty’s office had a “culture of avoiding the creation of written documentation” about the gas plants. She stopped short of saying with certainty that the former premier’s staff had improperly deleted emails, but said “it strains credulity that no one knew that the practice of deleting all emails” was improper.

Prosecutor Tom Lemon told the judge that Gagnon’s statement about Livingston was “not ideal as it appears in that email” and that it was for the judge to decide if it was a bridge too far.

But mostly, Lemon said, Gagnon was involved in the investigation only as a technical adviser, and his only interactions with detectives was “related to his technical skills.”

He said the solution is for the judge to “hear the evidence” and then decide if he will allow Gagnon to give “all or some” of his interpretation of what the missing data means.

Proceeding that way — with the judge hearing Gagnon’s testimony and then evaluating and ruling on it — causes “no prejudice to the accused.”

But Hutchison said the law on expert witnesses has so changed in recent years that it would be “an error in law” for the judge to handle it that way.

In the spring of 2015, the Supreme Court of Canada ruled that expert witnesses generally must be impartial and independent. An Ontario Court of Appeal decision in 2017 dealt specifically with police experts and found they cannot wear two hats — cannot be both investigator and expert, in other words.

But by the time the Supreme Court decision was released, Gagnon had been on the job for almost a year, and by the time the second decision emerged, the parties were preparing for trial.

Those decisions, and the changes they impose, suggest another sort of procedural unfairness may be at work — that police who run investigations in good faith ( and hire experts in good faith) can be retroactively judged and found wanting by exacting new standards the courts impose.

The trial is on hold pendi ng t he j udge’s decision Thursday.