Crown asks to drop breach of trust charges at gas plants trial

TORONTO — The unlikelihood of a guilty finding on a key charge prompted the prosecution at Ontario’s gas plants trial to ask the court to acquit two former senior political aides of breach of trust, while the defence asked the judge to dismiss the two other charges in the case as based on little more than speculation.
Prosecutor Tom Lemon said Friday that the Crown had taken a hard look at the “totality of the evidence” against former premier Dalton McGuinty’s chief of staff David Livingston and deputy Laura Miller and found it wanting on the first charge.
“There’s no longer a reasonable prospect of conviction with regard to the breach of trust count,” Lemon told Ontario court Judge Timothy Lipson.

Lawyers for the accused then argued for a directed verdict — an acquittal without any defence evidence — on the remaining two counts, mischief and unauthorized use of a computer. Lemon opposed the call.
The prosecution alleges Livingston and Miller illegally destroyed documents related to the Liberal government’s decision to scrap two gas plants ahead of the 2011 election to hide potentially embarrassing emails from public and legislative committee scrutiny.
But Brian Gover, who represents Livingston, said there was simply no evidence to support the accusations. The prosecution case is so weak that any inference the pair acted illegally amounts to “rank speculation bordering on conspiracy theories,” Gover told Lipson.
While the accused did delete files in an effort 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.
“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.”
Lipson has noted that the pair appeared to have gone to “extraordinary lengths” to delete the computer files. Court has heard Livingston requested special access to the computers, and Miller’s IT-savvy spouse, Peter Faist, was hired to wipe the hard drives.
Gover argued that the computers contained personal information, were also used by the Liberal party, and that civil servants viewed Livingston’s plans as “entirely reasonable.”
Livingston, Gover asserted, had been open and upfront about his plans.
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 directed acquittal continue.