Here are some observations arising from Judge Lipson’s verdict, both what it contained and what it did not contain.
The logic and evidence in the decision set out as the basis for the Livingston convictions seem solid. Whilela Miller has her defenders, most prominently Warren Kinsella, Livingston doesn’t seem to have anyone defending him in the public sphere. Anyone wanting to defend Livingston is particularly welcome to share their views in the comments below. As is my practice with this site, proper arguments and references are requested, but feel free to attack anything I say.
At the beginning of the gas scandal, Liberal supporters and even some independent observers claimed that the whole thing was a routine case of political manipulation for electoral gain at public expense and no big deal. When I launched this Gas Busters series, my first post set out my hunch that there was a lot more at stake. The Livingston conviction and all it has revealed defeats the “no-big-deal-’cuz-all-parties-agreed-to-the-gas-plant-cancellation canard. (Here’s the conviction notice.)
The main thrust of Laura Miller’s acquittal rested on a lack of documentation. Here is one of Lipson’s statements:
“There is no evidence that she received the emails or memos from the Cabinet Office about the obligation to retain records.
While true, Lipson’s reasoning here is threadbare. The introduction and passage of the Archives and Recordkeeping Act had been a signature McGuinty achievement only a few years earlier. Miller knew that the document destruction project she was central to was breaking the law.
“Because of her close working relationship with the defendant, it is very possible that at some point she learned about the means used by Mr. Livingston to obtain permission from the Secretary of Cabinet. However, to conclude beyond a reasonable doubt that she did know is not possible and would amount to speculation.”
This statement is the guts of the Miller acquittal. Unlike his comment about the uncertainty of her knowledge of the wrongdoing, Lipson here is on solid ground here. His acquittal of Miller seems like a just conclusion given the facts available to the court.
I can only wonder if the outcome might have been different had Crown prosecutor team of Tom Lemon, Sarah Egan and Ian Bell not put the puck in their own net, wiping out the forensics evidence of their computer expert retired OPP Det.-Sgt. Bob Gagnon. A great source summarizing that sorry episode was presented by Christie Blatchford here.
The inadmissible evidence episode appears to me to be the result of incompetence, but I’d welcome contrary views.
Losing that evidence caused the prosecution to withdraw the original breach of trust charges.
To consider the implication of the lost evidence, recall what the OPP search warrant or ITO released to the Toronto Star December 18, 2014, had to say about the communication between Miller and Livingston immediately leading up to Livingston obtaining the codes to destroy the computer data of key operatives. (This ITO is discussed in more detail here:
The ITO details how Livingston and Miller exchanged a week-long series of emails during the last week of January 2013, with Miller prodding Livingston to secure the computer access codes to complete the document destruction. The handover from McGuinty to Wynne was days away. Six days earlier, Miller and Faist’s test run to install deleting software called WhiteCanyon to scorch her hard drive was thwarted by the locks on her government-owned computer. (Line 1190) The culmination of that communication series was an email from Livingston to Miller January 31 say, “We have broken through. CO (Cabinet Office) has facilitated and I will be talking to Dave Nicholl (Corporate Chief Information Officer for the Ontario Public Service or OPS) this afternoon about how to actually get the codes and move forward.” (Line 1599) As the ITO makes clear, Miller and Faist did the dirty deeds to the government documents on the computers in the Premier’s Office AFTER Livingston and Miller were served with my FOI appeal (more on that in a minute).
The people of Ontario owe a big thank-you to the Ontario Public Service for its overall performance in this matter. A few particular individuals showed themselves to be particularly awesome in the trial evidence. At the top of the list is former Cabinet Secretary Peter Wallace. Also prominent in Lipson’s decision were Linda Jackson who reported to Wallace and William Bromm who was Wallace’s lawyer and worked with Jackson to preserve document relevant to FOI appeals when they came to understand Livingston’s malicious intent. Previously in this series, I have drawn attention to the overall awesomeness of Jackson’s role.
Lipson notes that David Nicholl, then head of gov’t IT, specifically reminded Livingston about the importance an FOI appeal (I think my appeal) for gas scandal documents from the Premier’s Office and the significance of the Archives and Recordkeeping Act. All that is true, and important. Previously in this series I have expressed concerns as to whether, with the benefit of hindsight, Nicholl may have gone too far in aiding his political masters, but now I think that looking back with hindsight on this action by Nicholl is not a reasonable test. Nicholl was trying to do his job, and understood that providing codes to Livingston was part of that job. Livingston was a master deceiver and the circumstances at the time — a transition of premiers — would have been a pressure cooker for Nicholl.
Strong evidence from Wallace rescued the Livingston case for the prosecution. Here is an example of how Lipson used evidence from Wallace:
“‘…I indicated to him (Livingston) that…the only type of organization that didn’t keep records was a criminal organization.’ The Secretary (Wallace) said he felt that Mr. Livingston did not find this observation to be ‘particularly helpful’.”
Particularly impressive bits in Lipson’s decision include his considerations of the political circumstances surrounding the events and his recognition of the significance of the overlap between the Premier’s Office operatives identified by Livingston and Miller for special deletion of their data and those involved in the FOI appeals then as hot items in the Premier’s Office. Lipson’s chronology of events is also a dandy piece of work, although the chronology included in the ITO noted above is more inclusive.
As Christie Blatchford has noted, Lipson’s decision also includes loads of old-fashioned solid common sense. For example, when he read out his decision, the way he spoke to the simple fact that the data on those Premier’s Office computers was the property of the government of Ontario was emphatic. Lipson included one of my favorite lines from Livingston, who in an email to McGuinty’s operatives on how to keep their records beyond the reach of FOIs and parliamentary disclosure orders notes,
“…nothing is more confidential than talking rather than writing!”
Lipson describing Livingston as using a “scorched earth strategy” made me smile. One of the phrases I have used during my Gas Busters series to describe the Premier’s Office operatives who signed off on my FOI appeal as having no responsive documents was as “document scorchers”.
FOI played an important role in the conviction and in the wider process of the public getting access to information on how the Liberal gas scandal went down. Lipson repeatedly draws attention the fear Livingston and Miller had of FOIs then under appeal. One of those appeals was mine, documented in this series in Parts 23, 29, 41, 42, 43, 53 and 54. I think there was another appeal underway by Peter Tabuns, but I am still checking with his office on that.
There is a bunch of important stuff that didn’t get into the criminal process. Here are a few items that seem important to note (or in some cases note again in this Gas Busters series).
Given the documentation available publicly, it is clear that both Miller and Livingston lied many times in their respective appearances as sworn witnesses before the Justice Policy Committee of the legislature. From what I can see, none of those contradictions were part of the evidence at trial.
Some folks unmentioned in Lipson’s decision should be recognized and thanked for making the measure of justice brought by the Livingston conviction possible. I have noted previously that two current MPPs Vic Fedeli and Peter Tabuns and former MPP Rob Leone deserve special thanks. I should also note that their staff members made outstanding contributions too.
We should also thank the OPP officers who worked on this case. This case must have been taxing for them.
A glaring nearly-complete absence throughout the criminal process has been Livingston’s boss.
From the bits and pieces that came out over the course of the gas scandal investigations, it is clear that former Premier McGuinty was laser focused on not creating recoverable records of his communications. For example, in his sworn testimony before the Justice Policy Committee of the Ontario Legislature on May 7, 2013, McGuinty claimed:
“I did not have an office computer; I did not use a government email. My interaction overwhelmingly was verbal in nature with my staff.”
Later, he was forced to recant this testimony when NDP MPP Peter Tabuns confronted him with evidence that he did use email. However, his email record in the material disclosed during the gas scandal inquiry was suspiciously thin.
The ITO referenced above notes,
“Mr. McGuinty stated that he communicated with his Chief of Staff David Livingston through meetings. He stated that minutes of those meetings were not documents and this supported the oral nature of his government.” (Line 1712)
The premier had a sense that he was running a criminal enterprise.
I’ll leave the last word to McGuinty himself from his book “Making a Difference” (2015), pg. 184, brought to my attention by a tweet from journalist Chris Selley:
“I was determined [as premier] not to contribute to the cynicism that has robbed so many of their faith in our political institutions.”