Newspaper article The Canadian Press

Gas-Plants Judge Deals Prosecution Blow by Disqualifying 'Expert' Witness

Newspaper article The Canadian Press

Gas-Plants Judge Deals Prosecution Blow by Disqualifying 'Expert' Witness

Article excerpt

Gas-plants judge deals prosecution big blow

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TORONTO - The case against two former top political aides in Ontario accused of illegally destroying emails in the premier's office took a serious blow Thursday when the judge ruled a key prosecution witness could not testify as an expert.

The witness, a former provincial police officer, was simply too close to investigators and the investigation known as Project Hampden to offer impartial evidence as legally required, Ontario court Judge Timothy Lipson ruled.

Lipson noted Robert (Bob) Gagnon, a retired police computer specialist, was integrally involved in investigating and prosecuting David Livingston and Laura Miller, even at one point suggesting one of the three charges laid against them. The pair has pleaded not guilty.

"There really was no separation between the work of Mr. Gagnon and that of the Project Hampden investigators," Lipson said. "Over time, he became an important member of the Project Hampden team."

The prosecution had wanted Gagnon to testify as an expert witness against Livingston and Miller, chief of staff and deputy to former Liberal premier Dalton McGuinty. As an expert, he could have offered the court his opinion on what he discovered.

But the defence said he didn't meet the test of independence, impartiality and freedom from bias. It cited his extensive involvement in the probe virtually from the start, when investigators set him up with a separate computer forensics laboratory at provincial police headquarters.

The separate facility, Lipson said, was an appropriate step, but turned out to be the "only one." Gagnon's involvement "expanded rapidly over time" to the point where he became an important resource for the investigative team, the judge said.

His lack of independence and impartiality, the judge said, was thrown into stark relief in an email to his colleagues in February 2015, when he suggested laying a mischief charge against the accused.

"Livingston was leaving public service but had to protect his reputation and that of the party for any future employment elsewhere and the parties (sic) future election," Gagnon wrote in the email. "Based on the above, an additional charge of mischief in relation to data would meet the test. …

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