Closing arguments made in gas plants trial

Two top former Dalton McGuinty staffers pursued the “nuclear option” when they had 20 government computers wiped, the Crown argued Wednesday in closing arguments in the eight-week gas plants trial.

“It defies logic and common sense,” said Crown prosecutor Tom Lemon, describing the explanations of the co-defendants.

Lemon told court there was a “two-pronged” strategy  to remove potentially incriminating computer records: one, to double-delete emails as they were received, and two, to wipe computers.  

He argued it was not sensible to accept the defence contention that co-defendants David Livingston and Laura Miller, the top two staffers in the McGuinty’s office in early 2013, were concerned about wiping personal staff data, such as  baby photos and MP3s, before Kathleen Wynne took office.

Livingston and Miller face two charges related to deleting computer records, for which they have pleaded not guilty. One of those charges, an attempt at mischief, was reduced by Justice Timothy Lipson from a higher charge two weeks ago. A third charge, breach of trust, was dropped by the Crown when it conceded there was not a reasonable chance of conviction.

Near the end of the transition period between the McGuinty and Wynne governments, Livingston and Miller sought to wipe government computer records, emails submitted in evidence show. Rather than using the premier’s office IT resources, Miller suggested hiring her partner Peter Faist, a tech consultant who was paid more than $11,000 by the Liberal Caucus for his work.

The prosecution, relying on testimony from top civil servants, argued this was an unusual arrangement where the only logical conclusion is that there was conduct in bad faith. Earlier in the trial, former top civil servant Peter Wallace testified he signed off on special administrative access, but this was mainly for Livingston aide Wendy Wai. He added he did not know that Faist, an outsider without security clearance, would be wiping the computers, calling the notion that this would be okay “ridiculous.” Wallace regretted granting the access in hindsight, but said he could not anticipate how it would be used.

The Crown characterized Livingston’s computer access request as “dishonest,” contending that he omitted the full context of the situation when he placed the request. But the defence sought to undermine Wallace in its closing arguments Wednesday by describing him as “a self-interested witness” who wanted to preserve his reputation. In its response, the Crown described Wallace as “honest to a fault.”

The defence also argued the prosecution was trying to connect dots that simply were not there, in order to “presume guilt” and work on the evidence backwards. 

“The Crown relies on mere coincidence in time,” said defence counsel Brian Gover, who represents Livingston.

Justice Timothy Lipson took an active role in asking questions of both the Crown and defence. He asked the defence why the co-defendants would hire Faist with money from the Liberal Caucus rather than just use internal IT services. Gover responded that staffers were routinely frustrated with the department, and in this case “you would go to the trusted person.”

The defence also tried to raise the argument that no one who knew about the computer wiping objected to it at the time. Lipson pointed out that when Wallace found out the full facts, he strongly objected.  “It’s why we’re here,” the justice said.

The judgement is expected January 19.