Witness rejected at gas plants trial
Judge rules retired detective was too close to investigation to be impartial in the case
Ajudge has dealt a blow to the criminal prosecution of two Dalton McGuinty aides accused of deleting emails, ruling the Crown cannot use a retired OPP detective as an expert witness.
Former sergeant Robert Gagnon, a computer forensics specialist hired to examine hard drives and BlackBerrys seized under search warrants, was too close to the investigation, Judge Timothy Lipson said Thursday.
That means Gagnon — slated to be a key witness for the Crown — cannot be relied upon to give unbiased opinions on evidence as the case continues, Lipson ruled. In one example the judge called “the most concerning,” Gagnon recommended an additional charge of mischief in relation to data be laid against David Livingston and Laura Miller.
“There really was no separation between the work of Mr. Gagnon and the work of Project Hampden investigators,” Lipson said of the OPP team and the police code-name for the probe.
“This is a clear case for exclusion,” he added in a one-hour ruling on a motion by the defence to have the retired detective-sergeant rejected.
“Mr. Gagnon regarded himself as a team member of Project Hampden.”
The trial was delayed for two days while Lipson researched his ruling in the case against Livingston, the final chief of staff to McGuinty before he stepped aside as premier, and former deputy chief Miller.
They are charged with breach of trust, mischief in relation to data and misuse of a computer system in the alleged wiping of hard drives in the McGuinty premier’s office prior to Kathleen Wynne replacing him in February 2013. The changeover of power took place amid a political fu- ror over the McGuinty government’s controversial cancellation of gasfired power plants before the 2011 provincial election.
Livingston, a former investment banker, and Miller have pleaded not guilty. They face up to 10 years in prison if convicted of the charges laid almost two years ago.
The trial centres on allegations that Livingston and Miller did not supply emails and documents requested under Freedom-of-Information laws and by a legislative committee probing the reasons behind the cancellations. The Crown charges the defendants “destroyed records they had a duty to preserve.”
The Crown will have two weeks to ponder its next moves as the trial adjourns until Oct. 16 after Friday’s proceedings. No evidence of deleted emails or documents has yet been presented.
In his ruling, Lipson noted Gagnon’s role in the case “expanded rapidly over time” as he became an important resource to the OPP team, sitting in on “numerous” conference calls and meetings on the investigation. An email Gagnon sent to investigators about Livingston needing to protect his reputation and that of the Liberal party is “the kind one would expect of a partisan police investigator,” the judge concluded.
He admonished the Crown for not heeding a precedent-setting 2015 Supreme Court of Canada ruling that expert witnesses must be independent and impartial to prevent wrongful convictions.
Also Thursday, the Crown called senior cabinet office official Linda Jackson, now retired, who testified a decision was made to stop cancelling the email accounts of departing premier’s office employees because of “the number of freedom of information requests” at the time.
As to whether Livingston was given any training in retention of records, Jackson said “I don’t know,” but added she was not aware of such training for political staff until after Wynne took power.