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Civil servants kept emails in case they shed light on McGuinty's gas plant cancellations

Senior civil servants didn't kill email accounts of departing McGuinty staffers in case they contained gas plants records, criminal trial told.
Oct. 22, 2017
By Rob Ferguson

Senior civil servants quietly decided not to kill off email accounts of departing political staff during Dalton McGuinty's final months in power in case they contained crucial records on the cancellations of two gas plants.

The testimony Friday from cabinet office legal counsel William Bromm underlined officials' concerns that the premier's office was not saving documents demanded in freedom of information requests and by a committee of MPPs.

Knowing that a new premier would be taking over in February 2013, top bureaucrats departed from the standard procedure of closing email accounts, Bromm told the criminal trial of two top McGuinty aides accused of deleting documents.

"We were uncomfortable if we just deleted and decommissioned these accounts," added Bromm.

Asked by Crown prosecutor Sarah Egan why officials, including cabinet office chief administrative officer Linda Jackson, kept this decision from political staff, Bromm, a lawyer, replied candidly.

"We didn't want to be in a position to be told not to do it.

Former McGuinty chief of staff David Livingston and his deputy, Laura Miller, have pled not guilty to breach of trust, mischief in relation to data and misuse of a computer system in the alleged wiping of hard drives.

Bromm said the email decision was made in November or early December of 2012, a few weeks after McGuinty prorogued the legislature amid a political furor over the plant cancellations and resigned, triggering a Liberal leadership race.

The cautious approach meant "we could unfreeze ... and search" the email accounts when the legislature resumed sitting, Bromm said.

He fully expected opposition MPPs dominating legislative committees in the minority parliament to revive legal demands the energy minister produce all documents detailing reasons behind the gas-fired power plant cancellations in Oakville and Mississauga before the 2011 election.

Officials were also aware an opposition motion of contempt of Parliament aimed at then-energy minister Chris Bentley could also be revived, with potentially serious personal legal consequences for him, Bromm said.

He testified that Livingston thought it strange that MPPs could legally demand emails detailing the plant cancellations, which corroborates evidence earlier this week from former cabinet secretary Peter Wallace.

"Mr. Livingston indicated, at the time, he thought that particular power was ridiculous," Bromm said. "They could, in fact, order a minister to produce any record."

Wallace testified Monday that Livingston called that power "political bull - - - -."

In a surprise move, lawyers for the prosecution and defence agreed Friday that a maximum of 400 deleted computer files are at issue in the case - a tiny fraction of the original police estimate.

OPP forensic tests of hard drives recovered from McGuinty's office through search warrants show White Canyon deletion software was installed on 20 of the 24 computers examined by retired detective Robert Gagnon.

"Of the 632,000 files deleted on these computers, a total of no more than 400 included any user-created content," Miller lawyer Scott Hutchison said, referring to files created by political staff.

The rest were standard computer programs and similar files, he added.

McGuinty was not a subject of the OPP investigation and co-operated with police.