Crown, defence make final arguments in gas plants deleted documents trial

Crown and defence lawyers laid out to a judge Wednesday their competing theories of why two top Ontario Liberal political staff arranged for 20 government computers to be wiped during former premier Dalton McGuinty's final days in power.

David Livingston, who was McGuinty's chief of staff, and his deputy Laura MIller, are charged with attempted mischief and unauthorized use of a computer.

• Trial of 2 Ontario Liberals must continue, judge rules

They have pleaded not guilty.

It's alleged the two were trying to hide documents related to the government's decisions to cancel two gas firedpower plants in Oakville and Mississauga, moves that the auditor general determined cost some $1.1 billion.

Lawyers made their final submissions to Justice Timothy Lipsonon Wednesday.Lipsonhas announced he'll deliver his decisionin the case on Jan. 19.

The defence acknowledged in its final submission that Livingston obtained a special administrative password to gain access to computers in the premier's office in early 2013.

The defence also acknowledged that Miller's common-law spouse Peter Faist was hired by the Liberal caucus at a price of more than $10,000 to wipe 20 hard drives that belonged topremier's office staff who were leaving upon McGuinty's resignation.

Lawyers for Livingston and Miller deny the pair were attempting anything criminal.Rather, they say the pair wanted to clean the computers of personal information and internal Liberal party political material.

However, the Crown allegedtheir motives were not so benign.

"That just makes absolutely no sense to go through all of that just to wipe personal documents from computers," said Crown prosecutor Tom Lemon, "The (defence) position does not hold water."

The Crown asked the judge to consider why Livingston, the highest ranking political aide in the premier's office, would concern himself with whether personal documents of junior staffers were removed from their computers.

Lemon also questioned why the pair took "extraordinary efforts and unprecedented steps...simply to make sure personal documents were not on the hard drives."

"On the totality of the evidence,there is only one rational answer to that question," he said.

The defence submitted that there is no evidence that Livingston and Miller intended to delete documents that they were required by law to retain.

"It was an attempt to clear the hard drives of departing staffers of personal and political information," said Livingston's lawyer Brian Gover, "The cleaning of the hard drives was not indiscriminate as the Crown alleges. "

Gover said the drives were wiped to get rid of staffers' financial and medical documentation from the computers, along with Liberal party strategy documents and polling information.

He said Livingston and Miller took steps to preserve government business records.

The Crown is theorizing a "circumstantial case" that has not been proven beyond a reasonable doubt, Gover said.

Miller's lawyer Scott Hutchison is to present his final verbal argument this Wednesday afternoon.

The Ontario Court of Justice trial began at Toronto's Old City Hall courthouse in September.

The Crown has already dropped a previous charge of breach of trust against the pair. The judge downgraded a mischief charge to attempted mischief.

Livingston and Miller did not call any witnesses in their defence.