McGuinty aide was told to preserve government records, Ontario gas-plant trial hears

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David Livingston, chief of staff to former Ontario premier Dalton McGuinty, was told in writing to preserve government records, including any documents related to the controversial cancellation of two gas-fired power plants, a criminal trial was told.

Ontario's corporate chief information officer, David Nicholl, testified in court at Toronto's Old City Hall on Friday that he wrote a memo informing Mr. Livingston of his obligation to comply with the province's archives act. The memo is dated Jan. 31, 2013, which was during Mr. McGuinty's final days in office. One week later, prosecutors allege, Mr. Livingston instructed staff to "double delete" e-mails to ensure that nothing was turned over to a legislative committee probing the cancellation of the two power plants.

The court heard that Mr. Nicholl wrote the memo after he received a virtually identically worded one from the cabinet office setting out the expectations for safekeeping government records during the transition from Mr. McGuinty to his successor. His memo says all correspondence as well as business planning and budget files in the Premier's Office must be preserved and transferred to the archives. Only "transitory records" – those that have no long-term business value – could be destroyed, it says.

As well, the memo says, all e-mails and records of any individuals in the Premier's Office involved in an appeal of a freedom-of-information request had to be retained. "This will avoid any allegation that your office improperly deleted records knowing that a matter was under appeal," says the memo, an exhibit at the trial in Ontario Court of Justice.

Steps should also be taken to preserve records related to the cancellation of the power plants in Mississauga and Oakville, Ont., and to document those steps in writing, to "again avoid any allegation that records were improperly deleted," the memo said.

Mr. Livingston and 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 before the 2011 provincial election. Each has pleaded not guilty.

The charges 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 Liberals' decision to scrap the power plant projects, which the provincial auditor has said cost $1-billion. Mr. McGuinty is not under investigation and has co-operated with the probe.

Mr. Nicholl was questioned by prosecutors about the period in early 2013, during the transition from the McGuinty government to Premier Kathleen Wynne. He testified that bureaucrats met on the morning of Jan. 30, 2013, to discuss a request Mr. Livingston made to him for special access to desktop computers in the Premier's Office. He said bureaucrats decided at the meeting that Mr. Nicholl should determine whether anyone in the Premier's Office already had special access to the computers.

There was "a fair degree of angst" at the meeting about whether to grant the access, Mr. Nicholl said under questioning from prosecutor Tom Lemon. Mr. Nicholl testified that he informed bureaucrats that seven staffers already had administrative access. As a result, a decision was made to grant access to Mr. Livingston as well.

As it turned out, the access granted to Mr. Livingston was much more powerful than what the staffers had, allowing him to alter and delete files on all the hard drives in the Premier's Office, according to police documents.

Asked by Justice Timothy Lipson if Mr. Nicholl understood that the administrative access granted to Mr. Livingston was different than what the other staff members had, he responded: "We didn't go into that level of detail."

Mr. Nicholl also said he does not recall if Mr. Livingston ever indicated that a non-government employee would be using the special access to the computers. Before he sent the memo to Mr. Livingston, he said he spoke to him on the phone to let him know that he had been given the go-ahead for the special access. A lawyer from cabinet office was present during that phone call, he said.

The trial is adjourned until Oct. 16.