David Livingston, chief of staff to former Ontario premier Dalton McGuinty, arrives at court in Toronto on Friday. Mr. Livingston and his deputy Laura Miller face allegations they illegally destroyed documents related to a government decision to scrap two gas plants ahead of 2011 provincial election.Colin N. Perkel/The Canadian Press
Former Ontario premier Dalton McGuinty's chief of staff dismissed as "ridiculous" legal advice saying a legislative committee could compel the government to produce documents related to the costly cancellation of two gas-fired power plants, a criminal trial was told.
William Bromm, general counsel in the cabinet secretary's office, testified at court in Toronto's Old City Hall on Friday that the scandal over the minority Liberals' decision to pull the plug on the two power plants dominated the political agenda throughout 2012. In September of that year, the speaker of the legislature had ruled there was evidence that then-energy minister Chris Bentley had breached his privileges by refusing to disclose documents on the power plants, leaving him facing a rare contempt of Parliament censure.
Mr. Bromm testified that in August of 2012, he discussed with David Livingston, the chief of staff, a motion passed by a legislative committee ordering Mr. Bentley to produce the documents. Around that time, he said, people were questioning whether the committee could compel the minister to hand over documents. While he and Mr. Livingston were standing outside the cabinet secretary's office, he said he explained to the chief of staff that the committee did in fact have the legal authority to require the minister to disclose the documents.
"David Livingston indicated at the time he thought that advice was ridiculous," Mr. Bromm testified.
Prosecutor Sarah Egan has said that the purging of documents while the McGuinty government was under "intense public pressure" to produce records forms the backdrop to the trial.
Mr. Livingston and former deputy chief of staff Laura Miller are facing criminal breach of trust and mischief charges in connection with the destruction of e-mails and other government records related to the cancellation of the two power plants before the 2011 provincial election. Each has pleaded not guilty.
The charges stem from police accusations that Mr. Livingston hired a non-government IT expert, Ms. Miller's spouse, Peter Faist, to "wipe clean" computer hard drives in the Premier's Office just days before Mr. McGuinty resigned in February, 2013.
Mr. Bromm also testified about the measures he took to try to ensure that government records were preserved during the transition from the McGuinty government to Premier Kathleen Wynne's leadership.
The standard practice during a transition, he said, was to have the information-technology department wipe the hard drives of departing staff in the premier's office. But because of all the controversy embroiling the McGuinty government over the power plants, Mr. Bromm said he and another senior bureaucrat secretly decided to simply suspend the e-mail accounts of staff in the premier's office – meaning the accounts could no longer receive or send messages, but documents were left intact.
Mr. Bromm said he was concerned that Ms. Wynne's incoming government would not be able to produce documents in response to outstanding freedom of information requests related to the power plants if the hard drives were wiped clean.
"We did not want the new Premier to be in a position of saying, 'sorry, that account was deleted.'"
Mr. Bromm said he and his colleague did not inform anyone that they were effectively freezing e-mail accounts, including his boss at the time, cabinet secretary Peter Wallace, because they did not want to be in a position of being told not to do it.
Despite Mr. Bromm's efforts to preserve government records, the trial has been told that files were permanently deleted on 20 of 24 computers seized from the premier's office as part of an investigation by the Ontario Provincial Police.
A total of 632,000 files were deleted on the 20 computers, prosecution and defence lawyers said in an agreed statement read out in court on Friday.
Mr. Livingston had the hard drives wiped after receiving special access to the computers that was approved by Mr. Wallace. Mr. Bromm echoed Mr. Wallace's testimony earlier this week, saying his former boss was uncomfortable granting the access. He said Mr. Wallace instructed him to write a letter, informing Mr. Livingston of his duty to preserve government records.
The trial continues on Monday.
Karen Howlett