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Wiped records not 'personal,' Crown says as judge reserves at gas plants trial

TORONTO — The question of whether two senior political staffers illegally destroyed politically embarrassing data in the office of former Ontario premier Dalton McGuinty was left Wednesday with the judge who has presided over the pair's trial.

Ontario court Judge Timothy Lipson reserved his decision after a day of closing arguments in which he heard starkly different views of the evidence against McGuinty's chief of staff David Livingston and his deputy Laura Miller.

In his final submissions, Crown lawyer Tom Lemon argued the accused deliberately set about deleting records about the government's costly 2011 decision to cancel two gas plants as a way to ensure the information would never see the light of day.

The key question, Lemon told Lipson, is why the accused went to "extraordinary" lengths to clean computer hard drives, most of which weren't even theirs.

"The stated purpose was wiping personal data — which makes absolutely no sense," Lemon said.

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 the accused were trying to get rid of partisan Liberal party information, he said.

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 and Miller have pleaded not guilty to charges of attempted mischief and illegal computer use for deleting 400 emails and other records from 20 computers before they left their jobs in 2013. What exactly they erased is unknown.

In its closing, the defence said no evidence exists to show the duo meant to delete data they knew had to be kept.

The prosecution, Livingston's lawyer Brian Gover argued, had unfairly tied the scandal over the $1.1-billion cost of cancelling the gas plants to the data deletion.

"There isn't a shred of evidence linking those two events," Gover said.

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

The 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.

Lipson has heard how 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, court has heard.

"They identified a need for permission," Miller's lawyer Scott Hutchison said. "They asked for permission and they got permission."

Court has heard Faist was not a civil servant and had no security clearance, but his engagement and actions were the "worst kept secret ever," the lawyer said.

Fatal to the prosecution's case, Hutchison said, is the fact that the only computers wiped belonged to people leaving the premier's office — even though staffers staying on also had requests for information related to the gas plants.

To make the charges stick, the defence 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.

Lemon, however, argued that Livingston obtained administrative rights to the computers "through the back door," and Miller was an active and knowledgeable part of the data-wiping scheme who chose the target computers.

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

Lipson said he expected to render his verdict on Jan. 19.

Colin Perkel, The Canadian Press

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