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Ahead of election, Ontario’s Liberals face reckoning in the courts

ANALYSIS

Ontario's Liberals face reckoning in the courts

The governing party in Canada's largest province faces an unprecedented situation: two unrelated but potentially scandalous trials against high-ranking officials at the same time. And it's all occurring ahead of an election, Adam Radwanski writes

The Ontario Legislature at Queens Park gets doused with rain on Tuesday. The dark cloud hanging above the province’s governing Liberals looks set to burst as well.

The dark cloud that has been hovering over Kathleen Wynne's government is finally about to burst.

Throughout the summer, Ontario Liberals were feeling pretty good about themselves – or at least better than they had in a long while. A hydro rate cut announced in the spring had taken a bit of the heat out of public anger over soaring prices. New left-of-centre policies – a minimum-wage increase, a pharmacare expansion, a housing-affordability package, a promised increase in daycare spots – may have gotten traction with voters who made up the party's base in recent election wins. At least the Liberals were off the defensive, talking about their current agenda rather than past mistakes.

But even as they insisted they were back to feeling competitive heading into next year's election, they knew they couldn't escape what was waiting for them after Labour Day.

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Now, as penance for how they have wielded power over 14 years, they face an airing of their dirty laundry the likes of which they've never seen – not in the legislature nor on the hustings, but in the province's courtrooms.

On Thursday, in Sudbury, Ms. Wynne's former campaign director, Patricia Sorbara, and local Liberal organizer Gerry Lougheed are scheduled to stand trial on Ontario Elections Act charges related to an alleged bribery attempt to get a would-be by-election candidate to step aside – proceedings that at some point will see the Premier called as a witness by the prosecution.

Four days after that trial begins, another one will launch in Toronto. In a culmination of the gas-plants scandal that has now plagued the Liberals for more than a half-decade, David Livingston and Laura Miller – who served as former premier Dalton McGuinty's chief of staff and deputy chief of staff, respectively – will face criminal charges related to document destruction as Mr. McGuinty left office in 2013.

On substance, the two trials are unrelated; that they will happen concurrently is a coincidence. But symbolically, the cases are very related indeed. In combination, they threaten to solidify an image of the Liberals that Ms. Wynne has spent this year trying to escape: that they have been corrupted by a desire to stay in power that supersedes any concerns for Ontarians' best interests.

For all the Premier's recent efforts to shift the focus to a forward-looking agenda, she appears under no illusion that she will be able to change the channel from the courtroom dramas this fall. Ms. Wynne will continue trying to draw as much attention as possible to policies she has already rolled out. But speaking to The Globe and Mail recently, one of her top strategists said the Liberals really have no choice but to "ride it out" through the trials, scheduled to continue into October, because any attempt to distract with fresh news would be too obvious and just create more backlash.

Ontario Premier Kathleen Wynne, left, greets supporters at a campaign event for Liberal candidate Andrew Olivier, right, in Sudbury in May, 2014. During a 2015 by-election campaign, Mr. Olivier would allege officials from the Premier’s office bribed him to step aside so former NDP MP Glenn Thibeault could run for the party.

What the Liberals don't know (nor do the opposition Progressive Conservatives, New Democrats or anyone else) is whether this will just be a bad couple of months or the beginning of the end.

They have overcome scandal to be re-elected – most notably in 2014, when Ms. Wynne was seen as enough of a fresh face to survive Mr. McGuinty's already well-established gas-plants mess. Will Mr. McGuinty's former officials and her own going on trial mere months before next June's election make it impossible to repeat that feat?

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We should get a much better idea of that in the next couple of months, courtesy of both the courtroom dramas and how those outside the courtrooms respond to them.

The trials' outcomes may be the single biggest factor in determining their political repercussions. Even a single conviction would surely grab and potentially hold Ontarians' attention and help the provincial opposition paint the government as unusually, historically corrupt. Acquittals across the board probably wouldn't give the Liberals a political boost, exactly – there are no points to be scored from having prominent members of your party on trial – but they would at least avoid making things worse for them and perhaps allow them to argue it's time to move on.

But no matter the verdicts, all the testimony along the way could be equally problematic for the Liberals, casting light upon some of the government's darkest moments.

Of the two trials, the one involving Mr. Livingston and Ms. Miller seems to have more potential for that. The criminal charges – breach of trust, mischief in relation to data and misuse of a computer system to create mischief – are broad enough to allow a wide array of evidence to be presented. Seeking to demonstrate motive in the improper deletion of thousands of computer files before Mr. McGuinty left office, prosecutors can be expected to dig into the politically motivated cancellations of a pair of power plants and why the Liberals might have wanted to cover them up.

In other words, that trial has the potential to bring renewed attention not just to the Liberals' ethical issues, but also to their record on energy policy – the two aspects of their government they least want voters to be thinking about heading into the election.

The Sudbury trial seems to have less potential for new revelations, since it appears to hinge mostly on whether rather vague (and ultimately rejected) offers dangled to a would-be by-election candidate in return for clearing the way for someone more high-profile – conversations the would-be candidate in question recorded – are enough to qualify as bribery under the Elections Act.

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The remains are seen of the gas-fired power plant in Mississauga, which was cancelled by the Liberal government before the provincial election of 2011.

But Sudbury stands to offer the most anticipated testimony of either trial: when Ms. Wynne is called to the stand by the Crown, which she has chosen to comply with, rather than invoke parliamentary privilege. The Premier can be thankful there are no cameras inside Canadian court proceedings, because images of her testifying would be manna for her opponents. But she will undoubtedly attract more journalists into the courtroom than any other witness. And if she struggles to explain her own role in the affair, it could be more politically damaging than any potential verdict. (Another potential magnet for attention: the testimony of provincial Energy Minister Glenn Thibeault, the star candidate for whom way was being made.)

Then there is the question of how effective the Liberals' opponents will be at drawing public attention to the trials and making them part of a messaging strategy that suppresses the governing party's support through the campaign next spring.

Of the two provincial opposition parties, Patrick Brown's Progressive Conservatives will make a more concerted effort on that front than Andrea Horwath's New Democrats will. That partly has to do with strategic imperatives: The PCs believe the government is theirs for the taking if they can just keep the Liberals' negatives front and centre, whereas the NDP wants to present Ms. Horwath as more of a change agent than Mr. Brown, which requires a more forward-looking message and less dumping on the incumbents. It's also because the Tories, unlike the New Democrats, have deep enough pockets to spend on advertising before the campaign begins – something they intend to do this fall to make the most of what is happening in the courts.

Speaking to The Globe recently, PC campaign chair Walied Soliman said that, particularly on gas plants, the Tories will aim to drive home that it is "Liberal corruption on trial," hold up the court proceedings as proof of the Liberals "putting their interests ahead of the province's" and try to use that to demonstrate that Ms. Wynne's current agenda is just more of the same.

The PCs seem somewhat more focused on the Livingston-Miller trial than on the Sorbara-Lougheed one – which, aside from the charges being more serious, may have something to do with the opposition party's own political circumstances. Facing several current nomination-related controversies of their own and having reportedly compensated former MPP Garfield Dunlop with party money after he stepped aside so that Mr. Brown could run in his riding after being elected leader, the Tories can only claim so much high ground.

Truth be told, current and former officials in all parties are known to privately express some sympathy for Ms. Sorbara and Mr. Lougheed in a "there but for the grace of God" sort of way. More than a few have made their own attempts to incentivize candidates or incumbents to step aside; they just had the good fortune not to be recorded doing so by a candidate deeply offended by their efforts.

But the Official Opposition is not about to look a gift horse in the mouth. If the trial of Ms. Wynne's former officials didn't happen alongside the one involving Mr. McGuinty's, there wouldn't be the prospect of a cumulative effect far more damaging to the Liberals than what the gas-plants case could have on its own.

Ontarians tend to pay only passing attention to the intricacies of provincial politics between elections, so it is entirely possible that some voters will conflate the two trials, thinking Ms. Wynne is testifying – and her officials facing charges – at a trial about the gas plants.

Even those who are more informed, and understand the distinctions, may find themselves connecting dots.

Ms. Wynne, and the people currently helping her run her government, did not participate in the alleged behaviour that led to the criminal charges against Mr. McGuinty's former officials. But how much distance will they convincingly be able to claim as their own ethical standards land them in court as well?


Behind the charges that have placed four Ontario Liberal insiders in the defendant's chair

LIVINGSTON-MILLER

David Livingston, left, and Laura Miller stand accused of breach of trust, mischief in relation to data and misuse of a computer system to create mischief.

The charges
David Livingston and Laura Miller, who respectively served as chief of staff and deputy chief of staff for former Ontario premier Dalton McGuinty, each face three criminal charges: breach of trust, mischief in relation to data and misuse of a computer system to create mischief.

The charges relate largely to the alleged deletion of files from hard drives in the Office of the Premier in the days before Mr. McGuinty left office in early 2013. The deletion was allegedly performed by Ms. Miller's partner, Peter Faist, an IT consultant who did not work for the government nor have security clearance to enter the office.

Breach of trust carries a maximum sentence of five years in prison and the mischief charges carry maximum jail sentences of 10 years each, although it would be highly unusual for the maximum sentences to be applied in the event of a conviction.

The backstory
The charges are associated with the gas-plants scandal that plagued the Liberal government through Mr. McGuinty's final months in office and beyond.

Leading up to the 2011 provincial election, in which Mr. McGuinty's Liberals were re-elected to a third term but reduced to a minority, they announced the cancellation of a planned gas-fired power plant in Oakville and the intention to cancel a second plant in Mississauga – both in Liberal-held ridings where the plants had been sources of controversy

As the costs of these cancellations ballooned far beyond the Liberals' claim of a combined $230-million, a legislative committee controlled by the province's opposition parties launched an investigation in 2012. The Liberals were accused of withholding documents demanded by the committee, with then-energy minister Chris Bentley facing a contempt of Parliament motion, before Mr. McGuinty announced his own retirement from politics and prorogued the legislature.

Following a June, 2013, finding by the province's Information and Privacy Commissioner that officials broke the law by deleting e-mails related to the controversy, the Ontario Provincial Police launched an investigation. Information about the computer access allegedly given to Mr. Faist, and a payment to him in government funds, emerged in a search warrant in December, 2014. The charges were laid the following December.

It bears noting that, with Mr. Faist allegedly deleting a total of 632,118 files from 20 computers, it is not clear that documents related to the gas plants were his sole or even primary target. Proving the connection is likely to be key for the Crown in establishing motive.

The accused
David Livingston was a relative political neophyte when he entered the Office of the Premier in May, 2012, at the age of 59. He had spent the past seven years as president and chief executive of the provincial agency Infrastructure Ontario, where he was seen to bring private-sector expertise accumulated during a long and accomplished career on Bay Street as a vice-president at Toronto-Dominion Bank.

Somewhat ironically – given how things turned out – Mr. Livingston was initially praised by other Liberals for drawing on his corporate background to bring more structure and clearer lines of accountability to an office that previously was more free-flowing. But by the end of his eight-month tenure, he was criticized by some fellow staffers and bureaucrats for failing to recognize the limitations of his experience and for rejecting advice that might have avoided some of the government's biggest stumbles, including the alleged document deletion.

Since Mr. McGuinty left office, Mr. Livingston has kept a low public profile.

His co-accused cuts a much different figure. Laura Miller has spent most of her adult life in political backrooms, working her way up from president of the Ontario Liberals' youth wing in the early 2000s to being the head of political operations in the Office of the Premier – and a sort of political enforcer for Mr. McGuinty.

Far from keeping her head down in recent years, Ms. Miller quickly re-emerged after Mr. McGuinty's departure as a major player in British Columbia politics, ultimately serving as Christy Clark's campaign manager. And she has been much more publicly defiant than Mr. Livingston during their legal battles, unsuccessfully seeking a misconduct hearing against a provincial police officer involved in the investigation. She also crowdsourced a fund for her legal defence, drawing contributions from the likes of former Ontario finance minister Dwight Duncan.

SORBARA-LOUGHEED

Patricia Sorbara, left, faces two charges of bribery under the Ontario Elections Act while Gerry Lougheed faces one.

The charges
Patricia Sorbara, a former campaign director and deputy chief of staff for Premier Kathleen Wynne, faces two charges of bribery under the Ontario Elections Act. Gerry Lougheed Jr., an Ontario Liberal Party organizer in Sudbury, faces one charge of bribery under the same legislation.

The charges stem from the alleged offering of incentives to Andrew Olivier, who was seeking the Liberal nomination in a 2015 provincial by-election in Sudbury, in return for exiting the race in favour of a star candidate, former NDP MP Glenn Thibeault.

Mr. Lougheed was initially charged with bribery under the Criminal Code, but that charge was stayed in 2016 and has since expired. The Elections Act charges now faced by Mr. Lougheed and Ms. Sorbara are lesser charges that carry maximum sentences of two years in prison less a day and maximum fines of $25,000.

The backstory
Mr. Olivier ran for the Liberals in the riding of Sudbury in the 2011 provincial election and narrowly lost to the NDP's Joe Cimino. When Mr. Cimino resigned mere months later, Mr. Olivier wanted to run again under the Liberal banner. Instead, party brass successfully recruited Mr. Thibeault and wanted to have him quickly acclaimed – which would go more smoothly if Mr. Olivier co-operated.

In conversations recorded by Mr. Olivier, who cannot take notes because he is quadriplegic, the two defendants in this trial seemingly dangled potential consolation prizes if he cleared the path for Mr. Thibeault. In one recording, Mr. Lougheed can be heard saying that "the Premier wants to talk to you about this," counselling Mr. Olivier to consider what "reward" he might get if he "took a bullet for us" and raising "options in terms of appointments, jobs, whatever." In another, Ms. Sorbara suggests "a broader conversation about what is it that you'd be most interested in doing" before raising prospects such as "a full-time or part-time job at a constituency office … appointments to boards or commissions … going on the [Ontario Liberal Party's] executive."

Initially, when Mr. Olivier publicly alleged the offers but had not yet released the recordings, Ms. Wynne denied anything beyond her officials encouraging Mr. Olivier – who ultimately ran and lost as an independent, while Mr. Thibeault was elected – to stay involved. Later, the Premier argued that since she had the power as Liberal Leader to simply appoint candidates, there was no plausible need to bribe a candidate to not run.

That may be part of Ms. Sorbara's and Mr. Lougheed's defence in court, and the apparent lack of a specific offer will undoubtedly be. But it was not enough to dissuade the police from laying the Elections Act bribery charges in November, 2015, despite the abandonment of the criminal charge against Mr. Lougheed shortly before.

The accused
Patricia Sorbara has been a player in Liberal backrooms since the 1980s, when she worked for premier David Peterson. She largely made her name as a campaign manager, but also served in roles such as chief of staff to provincial ministers and as "chief operating officer" for Michael Ignatieff when he led the federal Liberals.

Reputed for her discipline, Ms. Sorbara was enlisted in the summer of 2013 by Ms. Wynne to serve as her campaign director after by-election losses that cast doubt on the Liberals' election readiness. While some provincial Liberals chafed at her no-nonsense management style, she was credited with helping to whip their organization into shape before the 2014 election that returned them to majority government. She subsequently served as Ms. Wynne's deputy chief of staff.

When the charges against her were filed last year, Ms. Sorbara had recently taken leave from the Premier's office to serve as her party's CEO to prepare for the 2018 election. She stepped down after the charges were filed, but there have been hints she will be welcomed back if acquitted.

Of the four Liberals facing charges, Gerry Lougheed is the only one not to have worked in the Office of the Premier and is the least known around Queen's Park. But he has long been a major player in his hometown of Sudbury, where he runs a chain of funeral homes and was known as a top fundraiser and regional power broker for the Liberals.

Mr. Lougheed was also among the most prominent participants in Sudbury's civic society, chairing or serving on the boards of an array of charities and organizations. His legal troubles have taken a toll on his local standing: After the (subsequently stayed) criminal charges were laid against him, he resigned as chair of Sudbury's police services board, a position to which he had been appointed by the province.


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