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Gas plants verdict expected Friday; ex-premier's top aides to learn fate

Last Updated Jan 18, 2018 at 11:40 am PST

TORONTO – Two former top political aides will find out on Friday whether they are criminally responsible for the destruction of documents related to Ontario’s gas plants scandal.

Ontario court Judge Timothy Lipson is set to deliver his verdict in the case of David Livingston, chief of staff to former Liberal premier Dalton McGuinty, and his deputy Laura Miller who are accused of attempted mischief and illegal use of a computer.

The verdict comes just months before McGuinty’s successor, Premier Kathleen Wynne, will lead her party into a provincial election.

The Crown had earlier dropped a charge of breach of trust against the pair, while the defence lost its battle to have Lipson issue an acquittal on the other two charges they face. The judge did reduce the mischief charge to attempted mischief.

Over several weeks last fall, prosecutors outlined their case in which they claimed the duo had gone to “extraordinary lengths” to wipe the contents of hard drives in the premier’s office to ensure no records existed related to the cancellation of two gas-fired power plants.

The cancellation, just ahead of the 2011 provincial election, ended up costing taxpayers more than $1 billion and caused a huge political scandal.

Crown lawyer Tom Lemon argued in closing submissions that the accused were trying to protect the Liberal government from the political fallout of the decision. However, the defence maintained no evidence proved the accused knew they were deleting records they had to keep.

Court heard how the political situation at the time had become increasingly tense, with a legislature committee and others formally requesting records related to the gas plants cancellation and relocation decision. Livingston and Miller were quick to say they had no such records.

The defence struck a serious blow to the prosecution at the opening of the trial when it succeeded in having Lipson rule out a key prosecution witness as an expert, precluding him from giving opinion evidence. The judge found the former police officer to have been too close to the prosecution to be independent.

Evidence the court did hear was that Livingston hired Miller’s spouse Peter Faist, an outside IT expert without a security clearance, to wipe the drives days before McGuinty resigned in February 2013. To facilitate that work, Lemon argued, Livingston obtained special administrative rights to the relevant computers “through the back door.”

Lemon maintained the duo, contrary to explicit advice from alarmed bureaucrats, violated guidelines and policies related to the records. He said the pair kept senior officials in the dark about exactly what they were doing.

One key issue, Lipson has said, is whether Livingston used “dishonest means” to obtain those rights.

Livingston’s lawyer, Brian Gover, insisted no evidence tied the document deletion to the gas plants scandal. The records, he said, could have included staff’s medical or financial information, or sensitive strategy, polling or party-donor data that could have been used by an incoming “enemy” government.

Among 400 destroyed records from 20 computers the pair admitted deleting, court heard, were Livingston’s instructions on “double deleting” documents, but the accused argued the files contained only personal data or political records they had no obligation to keep.

Their lawyers also said no evidence existed to show exactly what was deleted.