TORONTO - One of three charges laid against two former senior Liberal aides in Ontario's politically explosive gas plants scandal fizzled Friday when the prosecution asked it be dismissed, while the defence urged acquittal on the other counts on the basis they failed to rise above the speculative.
The evidence, prosecutor Tom Lemon said in a surprise change of course, did not support convicting David Livingston and his deputy Laura Miller of breach of trust over destruction of emails related to the cancellation of two gas plants near Toronto before the 2011 provincial election.
"There's no longer a reasonable prospect of conviction," Lemon told Ontario court Judge Timothy Lipson.
Lawyers for the two top aides to former Liberal premier Dalton McGuinty then argued for a directed verdict — an acquittal without any defence evidence — on the remaining two counts, mischief and unauthorized use of a computer, a call that Lemon opposed.
Brian Gover, who represents Livingston, said no evidence supports the accusations the duo illegally destroyed sensitive documents to hide them from public and legislature committee scrutiny.
The prosecution case is so weak, Gover told Lipson, that any inference the pair acted illegally amounts to "rank speculation bordering on conspiracy theories."
"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."
While the accused did delete files 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.
At several points, Lipson noted the accused appeared to have gone to "extraordinary lengths" to delete the computer files: Livingston requested special access to the computers and Miller's IT-savvy spouse, Peter Faist, was hired to wipe the hard drives.
Gover, however, argued the computers contained personal information, were also used by the Liberal party, and that senior civil servants viewed Livingston's plans as "entirely reasonable," a theme picked up on by Miller's lawyer, Scott Hutchison.
The accused, Hutchison said, went to Cabinet Office to request permission for what they wanted to do, and Faist wiped the drives in plain view during business hours.
Hutchison warned against allowing the "amorphous scandal" around the scrapping and relocation of the gas plants at a cost of more than $1 billion to provincial taxpayers to cloud the facts.
"A criminal prosecution is … not about trying to write a salacious story for a newspaper," Hutchison said.
The prosecution, however, portrayed the accused as sophisticated individuals who acted in early 2013 under false pretences and against the advice of appalled senior bureaucrats to have files indiscriminately deleted from hard drives that were not theirs to wipe.
"The evidence clearly shows that the accused had a motive and a demonstrated intent to destroy records captured by a (Freedom of Information) request or an order of the Legislative Assembly," the prosecution said.
"Wiping the hard drives was part of a larger attempt to ensure there were no recoverable records."
Lemon said Livingston and Miller acted jointly — Livingston by obtaining a password allowing access to the computers and Miller by executing the deletion plan through Faist, who had no security clearance.
Lipson appeared to have difficulty finding evidence that proved records that should have been kept were deleted. In response, Lemon referred to emails from Livingston or Miller in which they discuss gas plant files, outside requests to see them, and deleting the records.
The prosecution and defence have agreed that no more than 400 documents were erased from 20 computers in the premier's office, but what exactly the files were remains a bone of contention.
The hearing on the directed acquittal verdict continues on Tuesday.