Crown argues deleted records ‘not personal’ at Ontario gas plants trial

TORONTO – The suggestion that two senior political staffers wiped only personal data from computers in the office of former Ontario premier Dalton McGuinty doesn’t wash, a judge was told in closing arguments on Wednesday.

Instead, the prosecution argued, evidence shows that David Livingston and Laura Miller deliberately set about deleting embarrassing records about the government’s costly 2011 decision to cancel two gas plants to ensure they would never see the light of day.

The key question, Crown lawyer Tom Lemon told Ontario court Judge Timothy Lipson, is why the accused went to “extraordinary” lengths to wipe computer hard drives, most of which weren’t even theirs.

“The stated purpose was wiping personal data – which makes absolutely no sense,” Lemon said.

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Taking unprecedented steps to get rid of photographs of children, resumes or other personal information as the defence argues is absurd, Lemon said. Nor was there ever any indication they were trying to get rid of Liberal party information.

The only “rational” answer, Lemon went on, is that they wanted to eradicate records they knew a legislature committee and others wanted to get their hands on.

Livingston, who was McGuinty’s chief of staff, and his deputy Miller have pleaded not guilty to charges of attempted mischief and illegal computer use for deleting emails and other data before they left their jobs in 2013.

In its closing submissions, the defence said no evidence exists that the duo intended to delete records they knew should have been kept. What exactly was erased is unknown.

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The prosecution, Livingston’s lawyer Brian Gover said, had tied the scandal surrounding cancellation of the gas plants – the decision cost taxpayers $1.1-billion – to the data deletion without any proof.

“There isn’t a shred of evidence linking those two events,” Gover said. “The cleaning of the hard drives was not an attempt to destroy documents that were legally required to be retained.”

Gover rejected Lemon’s characterization that the deleted information comprised photographs of children or resumes.

Those 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.

“The evidence as a whole is consistent with this intent,” Gover said.

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Evidence was that Miller asked her spouse, Peter Faist, to wipe one computer but he failed because he needed administrative rights to the machine. Livingston then requested, and obtained those rights from nonplussed senior civil servants.

Faist then wiped 20 computers in the premier’s office, court has heard.

To make the charges stick, Gover said the prosecution had to prove that Livingston “lied persuasively” to gain access to the computers.

“The court can’t find that Mr. Livingston concealed Mr. Faist’s role from the civil service,” Gover said.

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Lemon, however, argued that Livingston had shown a clear preoccupation with how emails and computer accounts were deleted and how they were backed up.

Livingston obtained administrative rights to the computers “through the back door,” and Miller was an active and knowledgeable part of the scheme, Lemon said.

“This is done to protect the reputation of the Liberal party,” Lemon said.

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