Bid to toss charges against McGuinty staffers now in judge's hands

The Crown attempted to salvage its case on Tuesday against two senior aides to former Ontario premier Dalton McGuinty. 

David Livingston, who was chief of staff during McGuinty's final months in power, and his deputy Laura Miller, are charged with mischief and illegal use of a computer. 

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Defence lawyers are asking the court to dismiss the charges for lack of evidence, seeking a directed verdict. Justice Timothy Lipson said he will announce his ruling on Thursday afternoon.

If the judge rejects the motion to acquit, the defence will have to start calling witnesses and mount a case.

In court on Tuesday, Crown prosecutor Tom Lemon said he is aiming to prove that Livingston and Miller did not have the proper authority to order the wiping of 20 computer hard drives in the premier's office in early 2013, just before McGuinty handed over to Premier Kathleen Wynne.

"The data being wiped did not belong to them," said Lemon.

The prosecutor pointed to earlier testimony indicating that the Liberal caucus — not the premier's office — paid Miller's spouse, an IT consultant who did not work in the Ontario public service, nearly $10,000 to erase hard drives that belonged to the government. 

"They weren't authorized to wipe data on 20 computers that did not belong to them," said Lemon. 

The efforts to wipe the hard drives in late January and early February 2013 came as a legislative committee and journalists sought internal documents about the decisions to cancel gas-fired power plants in Mississauga and Oakville, moves that the auditor general estimates cost taxpayers more than $1 billion.

The defence argues the hard drives were wiped as a matter of routine to remove personal information from the computers of staff who were leaving the premier's office.  

"There's no evidence of any records being destroyed," said Miller's lawyer Scott Hutchison. "That's the crucial flaw in the Crown's case."

Hutchison also argued that emails at issue in the case were about "political messaging" so did not need to be preserved under the rules for retaining government documents.  

"If you look at these emails, they are all political, they are all transient, and none of them would have had to be preserved," he said.

Hutchison said the prosecution had opened its case by suggesting the pair had deleted thousands of documents as part of some "grand conspiracy." He said the emails the Crown pointed to as evidence of guilt simply reveal the obvious, that the government's gas plants decision had been controversial.

Livingston's lawyer Brian Gover denied the pair had acted nefariously, stating the deleted emails were "political in nature." The law, Gover said, only required retention of records of long-term business value to the Ontario government, and the relevant emails about the fallout from the gas-plants decision didn't qualify.

Miller and Livingston have pleaded not guilty. The Crown dropped charges of breach of trust against the pair last Friday, saying there was no reasonable chance at a conviction.