TORONTO – One of three charges laid against two former senior political aides in Ontario's politically explosive gas plants scandal fizzled Friday when the prosecution asked it be dismissed, while the defence urged acquittal on the other counts on the basis they failed to rise above the speculative.
The evidence, prosecutor Tom Lemon said in a surprise change of course, did not support convicting David Livingston and his deputy Laura Miller of breach of trust over destruction of emails related to the cancellation of two gas plants near Toronto before the 2011 provincial election.
“There's no longer a reasonable prospect of conviction,” Lemon told Ontario court Judge Timothy Lipson.
Lawyers for the two top aides to former Liberal premier Dalton McGuinty then argued for a directed verdict – an acquittal without any defence evidence – on the remaining two counts, mischief and unauthorized use of a computer, a call that Lemon opposed.
Brian Gover, who represents Livingston, said no evidence supports the accusations the duo illegally destroyed sensitive documents to hide them from public and legislature committee scrutiny.
The prosecution case is so weak, Gover told Lipson, that any inference the pair acted illegally amounts to “rank speculation bordering on conspiracy theories.”
“The Crown has failed to put forward any evidence that a single document that was required to be kept was deleted,” Gover said. “There is no evidence they acted with intent to destroy any document that they were required by law to retain.”
While the accused did delete files to remove personal data from the hard drives of departing members of staff in the premier's office, Gover said they acted in the “sincere belief” they were entitled to do what they did and without any criminal intent.
At several points, Lipson noted the accused appeared to have gone to “extraordinary lengths” to delete the computer files: Livingston requested special access to the computers and Miller's IT-savvy spouse, Peter Faist, was hired to wipe the hard drives.
Gover, however, argued the computers contained personal information, were also used by the Liberal party, and that senior civil servants viewed Livingston's plans as “entirely reasonable,” a theme picked up on by Miller's lawyer, Scott Hutchison.
Livingston had been open and upfront about his intentions, which were well known by a “long list” of senior bureaucrats, Hutchison said. The accused, the lawyer said, went to Cabinet Office to request permission for what they wanted to do, and Faist wiped the drives in plain view during business hours.
Hutchison warned against allowing the “amorphous scandal” around the scrapping and relocation of the gas plants at a cost of more than $1 billion to provincial taxpayers to cloud the facts.
“A criminal prosecution is not about trying to write a salacious story for a newspaper,” Hutchison said.
The prosecution and defence have agreed that no more 400 documents were erased from 20 computers in the premier's office, but what exactly the files were remains a bone of contention. The defence maintains nothing of significance was deleted – that any important files would have been kept elsewhere in the government's system.
Lipson had dealt a major blow to the Crown's case at the start of the long-awaited trial when he refused to qualify a key prosecution witness, a former police officer with expertise in computers, as an expert. The ruling meant the witness, who had been intimately involved in the investigation, was unable to provide any opinions on what had been uncovered.
Arguments over the defence motion for a directed acquittal continue.