Crown opens case in McGuinty aides’ trial
Prosecutor alleges chief of staff and deputy ‘destroyed records they had a duty to preserve’ in gas-plant scandal
Prosecutors have mapped out the case against two key aides of Dalton McGuinty, alleging they “destroyed records they had a duty to preserve” during a political furor to reveal backroom decisions in the scrapping of two natural gas-fuelled power plants before the 2011 election.
“They acted contrary to the public interest,” Crown attorney Sarah Egan said in her opening argument Friday at the long-awaited criminal trial of David Livingston, 65, and Laura Miller, 38.
The pair worked for McGuinty before he stepped aside as premier amid the gas plants turmoil in February 2013, with Livingston serving as his chief of staff and Miller deputy chief.
The two are accused of being “directly involved” in the deletion of computer hard drives and documents linked to the cancellation of the gas plants, which faced community opposition.
Opposition parties insist the plants in Oakville and Mississauga were axed to save Liberal seats in the 2011 election that saw McGuinty reduced to leading a minority government.
The case is being closely watched with a provincial election looming next June and two other Liberals on trial in Sudbury for alleged bribe offers to get a would-be candidate out of the nomination race in a 2015 byelection.
“A significant number of emails, including emails related to the gas plants, were deleted from the government and mail boxes of Mr. Livingston and Ms. Miller” and on 21 other computers used by staff in the McGuinty premier’s office, said Egan, hinting at testimony to come from retired OPP detective and forensic computer investigator Robert Gagnon.
Before the trial began, 11 bankers’ boxes of papers where wheeled into the courtroom for the case that police code-named “Project Hampton.”
Livingston and Miller are charged with breach of trust, mischief in relation to data and misuse of a computer system under the Criminal Code.
The pair, who have repeatedly denied any wrongdoing in the wiping of hard drives in McGuinty’s office before Premier Kathleen Wynne took power, pleaded not guilty.
They face up to 10 years in prison if convicted.
In her brief summary, Egan said materials were destroyed while the McGuinty government was “under intense pressure” from opposition parties and orders from a legislative committee to produce documents on the cancellations.
The Progressive Conservatives and NDP have long accused the government of a coverup and using taxpayer money to bail itself out of trouble, while McGuinty has testified before a legislative committee that the plants were axed because they were too close to homes.
Auditor General Bonnie Lysyk concluded in a 2013 report that it will cost taxpayers up to $1.1 billion for the scrapping of the two plants and relocating them to Napanee and Sarnia.
Egan said Livingston, a former investment banker, instructed staff to “double delete” documents on their computers on the same day they were received, making sure the material would not be in the backup system as it would normally be for the next two weeks.
That means there would be nothing available to fulfil Freedom-of-Information requests or demands from the committees of MPPs probing the controversial gas plant cancellations, Egan told Judge Timothy Lipson.
In addition, backups are not part of the computer system accessed to fulfil Freedom-of-Information requests, she added.
Both Livingston and Miller purported not to have any of the requested documents, but witnesses to be called by the Crown — which relied on forensic examinations of computer hard drives from the premier’s office obtained by the OPP through search warrants — “will demonstrate that they did,” Egan said.
Under the OPP charges, prosecutors allege Livingston arranged for a special computer password to a nongovernment employee, Peter Faist, Miller’s common-law spouse and an information technology consultant, enabling him to clean the computer drives in the premier’s office before Wynne was sworn in on Feb. 11, 2013.
Egan said Faist did not have a government security clearance and that Livingston “notably then did not use the IT department dedicated to the Office of the Premier.”
Faist is not facing charges and McGuinty, who co-operated with police, was never under investigation.
Egan said Faist was hired despite the fact Livingston was “painstakingly warned” the week before by then-cabinet secretary Peter Wallace of obligations to keep proper records of public policy decisions.
The Crown’s first witness is slated to be Gagnon, a retired team leader of the OPP’s electronic crime section, who said he set up a separate lab to examine the premier’s office hard drives because “a higher level of security” was needed.
The trial, which was delayed almost two weeks because of defence concerns the Crown did not properly disclose all evidence to the defendants, is expected to last into early November.
Lawyers for Livingston and Miller will outline their defence later in the proceedings at Old City Hall.