Former Ontario premier Dalton McGuinty’s chief of staff was found guilty Friday of destroying politically sensitive documents related to a controversial Liberal government decision to scrap two gas plants ahead of the 2011 election at a cost of $1.1 billion to taxpayers.
The verdict against David Livingston came just months before the province heads to the polls under McGuinty’s successor, Premier Kathleen Wynne, whose governing Liberals face an uphill battle for re-election.
Livingston was found guilty of attempted mischief to data and illegal use of a computer. His deputy Laura Miller, who faced the same charges, was acquitted, a ruling that drew an audible gasp in the courtroom.
Ontario court Judge Timothy Lipson, who presided over the case and took much of the day to read his verdicts, said the political context around Livingston’s actions was highly relevant to the guilty finding. That context was the growing pressure in 2012 and early 2013 for the Liberal government to account for the cancellation of the two plants amid formal demands for records related to the decision.
It was “all gas plants, all the time,” Lipson said. “No issues were more challenging or more dangerous to the minority Liberal government than those related to the gas plants controversy. This was the grim political backdrop.”
The evidence showed that Livingston was openly dismissive of stern warnings from the secretary of cabinet about his obligations to retain and produce records a legislative committee had been demanding as it sought a contempt finding against the then-minister of energy, Lipson said.
“That’s political bullshit,” Lipson cited Livingston as having responded.
The senior aide’s “extraordinary” request to gain full access to computers in the premier’s office was done fraudulently, Lipson concluded.
Livingston failed to tell senior officials that he wanted the access to delete “potentially embarrassing” emails, or that the plan was to hire Miller’s spouse, Peter Faist, to do the dirty work, the judge said.
“(Livingston) could not have honestly believed that he had the secretary’s authorization to do what he did,” Lipson said.
It also defies common sense to suggest the wholesale wiping Faist did on 20 computers was done in accordance with prevailing government policies, Lipson said. The software used by Faist, who was not security cleared or a member of the public service, was designed to do one thing: “Wipe the contents of the hard drive without damaging the operating system.”
However, the judge said he had reasonable doubts that Miller knew her boss had “fraudulently” obtained permission to access the drives, what records he had been warned to keep, or why it was so inappropriate to hire her spouse to do the drive wiping.
As a result, the judge said, it was possible she was unaware of the illegalities perpetrated by her boss, even though she was acutely aware of the political context in which the deletions were happening.
Miller left the courtroom, her hands shaking visibly, while Livingston showed little emotion.
Prosecution lawyer Tom Lemon said he would be asking for jail time at a sentencing hearing set for Feb. 26. Livingston faces an unlikely maximum of 10 years behind bars.
Defence lawyer Brian Gover said it would be “absurd” to jail his client in light of Livingston’s otherwise unblemished years of public- and private-sector service, and what Gover called the relatively minor nature of the offences.
“We expect to be able to lead compelling character evidence,” Gover said. “We are saying that a fine would be appropriate. We are also be saying that probation might be appropriate. This point is that this is not a case for a custodial sentence.”
Gover said it was too early to discuss any appeal.
Miller’s lawyer Scott Hutchison expressed relief that a “long and very difficult process” had finally come to an end and that his client was glad to “get this distraction behind her” and move on with her life.
Wynne’s office was quick to distance itself from the proceedings, saying the case involved former staff to the former premier.
“We’ve been clear from the start that this is not how anyone in government should operate, and it is not how a premier’s office should operate,” a spokeswoman said in a statement. “Upon coming into office, we introduced a number of significant measures to strengthen the document retention protocol and ensure that all staff are aware of their responsibilities.”
The Opposition Progressive Conservatives, however, were quick to pounce on the decision.
“It’s a sad day when a premier’s most senior official is found guilty of trying to orchestrate a cover-up of the $1.1 billion gas plant scandal,” Conservative Leader Patrick Brown said in a statement. “The guilty verdict is an indictment of the 15 years of Liberal political corruption that has long been rooted in the premier’s office.”
New Democrat Peter Tabuns said the guilty verdict shows that the Liberals will do “whatever it takes” to protect themselves and their party’s seats ahead of an election.
“It’s clear that there was a scramble to cover up their motives,” Tabuns said. “Families are still footing the bill.”