Crown’s key witness can’t testify at gas plant trial
The prosecution case against David Livingston and Laura Miller, the former one-two powers in the office of former Ontario premier Dalton McGuinty, suffered a major blow Thursday when a judge ruled the Crown’s key computer witness can’t testify as an expert.
The case, which has been more than two years in the making, consuming significant public resources in the process, is now dramatically weaker.
Livingston and Miller, respectively McGuinty’s former chief of staff and deputy chief of staff, are pleading not guilty to three charges each.
All relate to the alleged deliberate destruction of documents about the McGuinty government’s billion-dollar cancellation of gas plants in Oakville and Mississauga.
Central to making that case was Robert Gagnon, a retired detective-sergeant from the Ontario Provincial Police and the force’s former e-crimes and forensic data expert.
But Gagnon, who was initially rehired by his old force as a technical analyst, went on to become an important figure in the OPP’s two-and-a-half yearlong investigation, called Project Hampden.
As Ontario Court Judge Timothy Lipson pointed out in his 16-page decision, which ruled Gagnon won’t be allowed to give opinion evidence, Gagnon gave investigators advice, legal and strategic; participated in dozens of meetings with the whole team on conference calls or emails; had input into the questioning of one key witness and watched the actual interview from a video room; physically participated in the execution of a search warrant; and even once suggested different charges be laid against Livingston and Miller.
His fatal errors were in once referring to himself as part of the team (“we are golden!” he wrote) and an email he sent Feb. 22, 2015, when he said of Livingston, “… (he) was leaving public service but had to protect his reputation and that of the party for any future employment elsewhere and the parties (sic) future election …”
The question for federal prosecutors Tom Lemon, Sarah Egan and Ian Bell is if the judge’s ruling is fatal, or merely damaging, to their case.
Federal, as opposed to provincial, prosecutors were chosen in order to avoid the appearance of a conflict of interest.
While Lipson was kind to Gagnon personally — he said he wasn’t adversarial to defence lawyers and seemed sincere he would testify fairly, but added “the question remains whether he is able to do so” — the judge said his comments about Livingston amounted to “expressed bias with respect to the guilt of the defendants …
“In my view, these comments, made two months before he offered his final forensic report, demonstration Mr. Gagnon’s lack of independence and impartiality,” the judge said.
“… I would characterize Mr. Gagnon’s comments to be the kind one would expect to hear from a partisan police investigator, not a supposedly independent and unbiased expert.”
It was a stunning rebuke for police and prosecutors both, and a particular irony that in a prosecution which is in large measure about email, it was a note sent by Gagnon that really sunk him.
While the judge granted that there has been “a dramatic evolution” in Canadian law on expert witnesses in the past few years, he noted that the main recent case, a Supreme Court decision called White Burgess which emphasized that experts must be independent, impartial and unbiased, was released two years ago.
“If measures had not been taken by the police or prosecution prior to White Burgess to retain an outside and independent computer forensic analyst unconnected to the investigation, the judgment in White Burgess should have sent a strong message to them to strongly consider doing so,” he said.
It remains unexplained why neither OPP lawyers nor prosecutors recognized the Supreme Court case as significant.
When Gagnon was first hired, the judge said, the OPP gave him a separate, secure lab in which to do his work apart from the investigative team — but then did nothing else to insulate him sufficiently that he could reasonably be put up as an impartial expert.
Unlike all other witnesses, properly qualified experts are allowed to give their opinions; in Gagnon’s case, he would have been able to offer his interpretation of what the data, computers and cellphones he studied means — for instance, that documents were deleted by a certain person at a particular time.
It is unclear what prosecutors will or can do to repair their case.
Luckily for them, the trial is scheduled to break for two weeks Friday, so they will have some time.
Prosecutors called their first witness Thursday, former career civil servant Linda Jackson.
Now retired, she spent the last part of her 36-year career as an assistant deputy minister cum chief administrative officer for Cabinet — essentially, she said, the “ministry for the premier’s office.”
Her cross-examination will continue Friday.