Ontario’s ex-cabinet secretary says he was reluctant to grant access to hard drives

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Ontario's former top bureaucrat says he was not comfortable giving former premier Dalton McGuinty's chief of staff special access to desktop computers in the premier's office, allowing him to install software and delete documents, but he says he had no basis for denying the request.

Peter Wallace, secretary of cabinet at the time, testified in court at Toronto's Old City Hall on Tuesday about the events that took place in late January, 2013, during Mr. McGuinty's final days in office. In response to the request from David Livingston for access to the computer hard drives, Mr. Wallace said he warned the chief of staff it would be concerning if no records were left behind in the premier's office. "I indicated that the only organizations that don't keep any records are criminal organizations," he said.

Mr. Livingston made his "extraordinary request" during a "deeply sad and very difficult time," Mr. Wallace said. Not only was the governing Liberals' controversial cancellation of two gas-fired power plants front and centre at the provincial legislature, Mr. McGuinty was leaving office in difficult circumstances.

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. Each has pleaded not guilty.

Under questioning from prosecution lawyer Tom Lemon, Mr. Wallace said his inclination was to deny Mr. Livingston's request. But after David Nicholl, Ontario's corporate chief information officer, told him seven staffers in the premier's office already had what is known as administrative access, Mr. Wallace said he had no basis to do so.

What he did not realize then, he testified, was that the administrative access granted to Mr. Livingston was different than what the other staff members had. Mr. Livingston got much more extensive access, allowing him to alter and delete files on all the hard drives in the premier's office, according to police documents.

Under cross examination by Brian Gover, a lawyer representing Mr. Livingston, Mr. Nicholl agreed that he was not in a position to explain to Mr. Wallace the difference between what Mr. Livingston was given and what the other staffers had because he "didn't understand administrative rights very well."

Mr. Wallace, who was in the Ontario civil service for 30 years before becoming Toronto's City Manager, also testified about the steps he took to ensure that Mr. Livingston was aware of his responsibilities to preserve government records in the premier's office, including documents related to the cancellation of the power plants before the 2011 provincial election. Mr. Wallace had legal counsel in his office draft what he described as a "painstakingly and exquisitely bureaucratic" memo informing Mr. Livingston of his obligation to comply with the province's archives act.

Mr. Wallace testified that he instructed Mr. Nicholl to read the memo in its entirety over the telephone to Mr. Livingston and then deliver it to him. However, it appears Mr. Nicholl did not follow those instructions.

In his testimony on Monday, Mr. Nicholl said under cross-examination from Mr. Gover that he e-mailed the memo to Mr. Livingston after speaking to him on the phone. When the lawyer said that Mr. Nicholl did not read it in full to Mr. Livingston, Mr. Nicholl replied that he does not remember trying to summarize the memo during the phone call. "It's very long to summarize," he said.

The charges in the case 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 stepped down in February, 2013.

The two are accused of compiling a list of senior Liberal staffers whose computer records were to be deleted, all of whom police allege were involved in discussions around the decision to scrap the power plants, which the provincial auditor-general has said cost $1-billion.

Mr. Wallace testified that he never would have approved Mr. Livingston's request for special access had he known he would allow a non-government employee access to the computers.

Mr. Wallace testified that Steen Hume, his executive assistant at the time, told him Mr. Livingston commented in passing that he was planning on having Ms. Miller's spouse wipe the hard drives. Mr. Wallace said the notion that the premier's office would use someone outside government was so far beyond the norm, he placed no weight on it. "It did not occur to me that anybody would actually do it," he said.

Mr. McGuinty is not under investigation and has co-operated with the probe.

The trial continues on Wednesday.