Newspaper article The Canadian Press

Judge to Rule If Key 'Expert' Crown Witness Can Testify at Gas-Plants Trial

Newspaper article The Canadian Press

Judge to Rule If Key 'Expert' Crown Witness Can Testify at Gas-Plants Trial

Article excerpt

Judge to rule on 'biased' gas-plants witness

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TORONTO - A key prosecution witness was so steeped in the culture of the police investigation of two top political aides in Ontario that he cannot testify as an unbiased expert, a defence lawyer argued in a Toronto court Monday.

In seeking to have Robert (Bob) Gagnon disqualified from testifying as an expert, lawyer Scott Hutchison relentlessly attacked the role the former police officer played in the probe of the destruction of computer files in the Ontario premier's office.

"Inquiry after inquiry has identified over-reliance on expert evidence as a source of wrongful convictions," Hutchinson told Ontario court Judge Timothy Lipson. "(An expert) witness must be independent and impartial."

While the Crown argued the judge should hear Gagnon's evidence before making any decisions, Hutchinson argued for his exclusion.

The proposed witness, the lawyer said, was from the outset an intimate member of the team that investigated, and later prosecuted, David Livingston and Laura Miller.

The duo -- top aides to former Liberal premier Dalton McGuinty -- are charged with illegally destroying documents related to the politically explosive issue of his government's cancellation of two gas plants near Toronto ahead of the 2011 provincial election. They have pleaded not guilty.

An expert witness, who can offer opinion evidence, must be objective, unbiased and independent. But Hutchison argued the career police officer with expertise in computer forensics, who came out of retirement to work on the case alongside former colleagues, took on an advocacy role.

"He was specifically recruited to this job. He was hand-picked in the spring of 2014 with a view to joining the team," Hutchison said. "What became clear: He didn't even understand how partisan he is."

From the start, Gagnon took part in numerous Project Hampton case conferences that at times included prosecutors, helped formulate search warrants, and provided input into witness interviews, court heard.

While Gagnon is a person of integrity, Hutchison said, the former detective-sergeant was in the "thick of it" as a team member. …

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