National Post

That didn’t come in the manual ...

- Christie Blatchford Comment from Toronto National Post cblatchfor­d@ postmedia. com

Why, there was no formal training for David Livingston and Laura Miller on their record- keeping obligation­s as political staffers in the office of former Ontario Premier Dalton McGuinty! None!

There was nothing in all the public service instructio­ns on document retention that explained what a “substantiv­e” contributi­on to decision- making might be! How was a person to know?

And t here was nothi ng, anywhere, that suggested that having an outsider come in to wipe clean computer hard drives was wrong, and that the security- cleared Queen’s Park Informatio­n Technology folks could nicely do the job!

This, in cross- examinatio­ns by lawyers for Livingston and Miller over the past week or so, appears to be if not the pair’s defence then at least one line of it: We surely didn’t do anything wrong ( they are, after all, pleading not guilty) but if we did, how were we to know it was wrong?

The two, respective­ly the one- two power in McGuinty’s office, are charged with three counts each, all related to their alleged destructio­n of documents relating to the former government’s billion- dollar decision to cancel and relocate two gas- fired power plants in Mississaug­a and Oakville.

As my former colleague and frequent National Post contributo­r KellyMcP arland wrote me ina note the other day, “This trial is amazing … the defence seems to be ‘ Yes, I’m intelligen­t and talented enough to be the top operative in the office of the Premier of Ontario … but I’m not bright enough to understand … when the province’s top bureaucrat emphasizes” the need to preserve relevant records.

The former top bureauc rat, Peter Wallace, of course, did just that in a Jan. 31, 2013, memo he had sent to Livingston, who was hoping to get an administra­tive password purportedl­y to erase his personal informatio­n.

Wallace reluctant ly agreed to give him the special password, but wanted Livingston alerted to his record-keeping obligation­s.

Wallace had him warned that with a Freedom of Informatio­n appeal underway involving McGuinty’s office and an outstandin­g order for documents from a legislativ­e committee, it would be best to search out and preserve any records related to the gas plants.

According to what prosecutor Sarah Egan alleged in her opening statement to Ontario Court Judge Tim Lipson weeks ago, Livingston and Miller intentiona­lly destroyed documents “for the purpose of thwarting the public’s right to accountabi­lity and transparen­cy” — and, just days after Wallace warned Livingston to keep records, Miller’s “life partner” Peter Faist was hired to wipe hard drives off 20 computers in McGuinty’s office.

Lawyers have taken some of the province’s most senior public servants through arcane government instruct i ons on record- keeping and, more germane to this trial, record-deleting.

Prosecutio­n witnesses Wallace, lawyers William Bromm and Don Fawcett and before them retired chief administra­tive officer Linda Jackson have all been questioned at length about the nuances of the government’s obligation to document its decision-making.

For the record, they have all been magnificen­t, the antithesis of the cynical and manipulati­ve forces at work in McGuinty’s office, as revealed in their own emails, recovered by the OPP and now an exhibit at trial.

They all worked for or with in high- level capacit i es POCO, t he acronym widely used to describe the Premier’s Office/Cabinet Office. Most if not all had dual roles — to advise and support the premier of the day, while also ensuring that the machinery of government served the best interests of the actual public who pay the bills.

The i nherent conflict in this dual role was best exemplifie­d by Wallace, who was in an agony of indecision about granting Livingston the special administra­tive password: His instinct was to refuse, but he was bound by convention and precedence, so he yielded, but with the proviso that Livingston have his responsibi­lities spelled out.

But it may have been Will i am Bromm, the l awyer who drafted much of that memo, who put it best.

He was being questioned by Scott Hutchison, lawyer for Miller, about the alleged “gap” between what was spelled out in government policies about wiping hard drives and who could do it and what wasn’t.

In other words, there was nothing in black and white that said it would be POCO IT, and there was no apparent prohibitio­n on outsiders being brought in to do it.

“At the time that memo was written,” Bromm said with a grin. “It didn’t need to say it.” It was so beyond the imaginatio­n back then, in other words, he couldn’t have contemplat­ed it.

Hutchison snapped that Bromm was laughing and it wasn’t funny.

“It is f unny,” he s aid cheerfully.

“You are trying to interpret a memo by a set of circumstan­ces that happened later, and you’re not giving me the same courtesy.

“It doesn’t say that ( government IT was to do the job). It would say that now.”


 ?? TYLER ANDERSON / NATIONAL POST ?? Laura Miller, deputy chief of staff to former Ontario premier Dalton McGuinty, and her superior, David Livingston, face allegation­s they illegally destroyed documents related to a government decision to scrap two power plants.
TYLER ANDERSON / NATIONAL POST Laura Miller, deputy chief of staff to former Ontario premier Dalton McGuinty, and her superior, David Livingston, face allegation­s they illegally destroyed documents related to a government decision to scrap two power plants.
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