Former Ontario premier Dalton McGuinty’s chief of staff has been sentenced to four months behind bars and one year’s probation for destroying records related to the $1.1-billion cancellation of two gas-plant projects, a rare instance of a Canadian political scandal ending with a judge ordering a jail term.
David Livingston “abused his position of power to promote the interests of the governing party at the expense of the democratic process,” Justice Timothy Lipson of the Ontario Court of Justice said in his sentencing decision on Wednesday. “His conduct was an affront to and an attack upon democratic institutions and values.”
Mr. Livingston, 65, was found guilty in January of unauthorized use of a computer and attempted mischief for “indiscriminately” wiping data from 20 hard drives in Mr. McGuinty’s office. The hard drives were wiped clean to ensure that no records existed in connection with the government’s decision to cancel two gas-fired power-plants. The jail term was in connection with the unauthorized use of a computer.
Anything less than imprisonment would fall short of “adequately denouncing” his conduct, Justice Lipson said in his reasons for the sentence, which he read to a hushed courtroom in Toronto’s Old City Hall. He also ordered Mr. Livingston to perform 100 hours of community service while he is on probation.
Mr. Livingston was escorted out of the courtroom in handcuffs. His lawyer, Brian Gover, told reporters outside the court that he was planning to seek bail for his client pending an appeal of the conviction. Mr. Livingston was released on bail later on Wednesday.
Mr. Livingston attempted to “thwart the core values of accountability and transparency” that are essential to the proper functioning of a parliamentary democracy, Justice Lipson said. “Mr. Livingston’s plan was to deny the public the right to know about government decision-making with regard to the gas-plant controversy.”
But Justice Lipson also said there were mitigating factors. He described Mr. Livingston as a first offender of previous good character who has made an outstanding contribution to the community, both professionally through his involvement with several charitable groups and in his private life. The offence was out of character, Justice Lipson said, and Mr. Livingston derived no personal gain.
Prosecution lawyers had sought a sentence of six to 12 months for Mr. Livingston at a hearing in February. The former career banker became chief of staff to Mr. McGuinty in May, 2012, and spent much of his nine months in that role dealing with the fallout over the government’s decision to pull the plug on the power plants before the 2011 provincial election.
Defence lawyers asked for a conditional discharge, arguing that the court of public opinion has already harshly punished Mr. Livingston. “His stellar reputation, which he built up over a lifetime, is now in tatters,” Mr. Gover told the court in February.
Justice Lipson said in January that Mr. Livingston deceived Peter Wallace, secretary of cabinet at the time, into granting him special access to the computer hard drives.
Mr. Livingston’s plan was to deny the public the right to know about government decision-making.— Justice Lipson
His ruling followed nearly four weeks of testimony from 11 witnesses for the Crown. He dismissed the charges against Mr. Livingston’s co-accused, deputy chief of staff Laura Miller, saying there is no evidence that she was involved in any conversations with Mr. Wallace regarding her boss’s request for special access to the hard drives or that she “schemed” with him on what information to omit from the request.
However, Ms. Miller, did not emerge totally unscathed. In describing Ms. Miller, 39, as a party to the offences, Justice Lipson said she was deeply involved in crafting communications strategies to address the cancelled power-plant projects. Justice Lipson said Ms. Miller helped Mr. Livingston select the employees whose hard drives would be wiped. But he said he is left “in reasonable doubt as to her guilt.”
Mr. Livingston and Ms. Miller were initially accused of destroying e-mails and other government records related to the cancellation of the power plants.
But prosecution lawyer Tom Lemon asked the judge in November to drop breach-of-trust charges against the two, saying the Crown could not prove that specific e-mails were deleted.
At the same time, lawyers for Mr. Livingston and Ms. Miller sought a directed verdict of acquittal on two remaining charges: mischief and unauthorized use of a computer in connection with the wiping of 20 hard drives. They each pleaded not guilty and Justice Lipson reduced the mischief charges against the two to attempted mischief.
The trial centred on the hiring of Peter Faist, a nongovernment IT expert and the spouse of Ms. Miller, to “wipe clean” the computer hard drives just days before Mr. McGuinty resigned in February, 2013.
Mr. Faist testified that he wiped the hard drives before the transition from the McGuinty government to Premier Kathleen Wynne.
During pre-sentencing submissions in February, the court heard from more than two dozen people who spoke on Mr. Livingston’s behalf, including his spouse of 40 years, Anne Grittani. She described her husband as a man of integrity who enjoys looking after his granddaughter.
Mr. Livingston also spoke publicly for the first time during the submissions, saying, “I apologize to my friends and family for the anguish I have put them through.”