R. v. Livingston, 2018 ONCJ 25

ONTARIO COURT OF JUSTICE CITATION: R. v. Livingston, 2018 ONCJ 25 DATE: January 19, 2018 BETWEEN: HER MAJESTY THE QUEEN — AND — DAVID LIVINGSTON AND LAURA MILLER Before Justice T.R. Lipson Reasons for Judgment released on January 19, 2018 T. Lemon, S. Egan and I. Bell ……………………………………………………. for the Crown B. Gover, F. Schumann and P. Hrick .......................................................... for David Livingston S. Hutchison, M. Borooah and G. Edelson………………………………………. for Laura Miller Lipson J.: Table of Contents

Part I: Introduction.................................................................................... 2

Part II: Overview of the Evidence.............................................................. 3

Part III: Positions of the Parties.................................................................. 32

Part IV: Relevant Legal Principles.............................................................. 36

Part V: Analysis........................................................................................ 44

Part VI: Conclusions................................................................................ 60

Part VII: Verdicts..................................................................................... 63 REASONS FOR JUDGMENT

PART I: INTRODUCTION [ 1 ] When this trial commenced, David Livingston and Laura Miller faced charges of Breach of Trust by a Public Official, Commit Mischief to Data and Unauthorized Use of a Computer . They pled not guilty. [ 2 ] After closing its case, the Crown abandoned the charge of Breach of Trust by a Public Official because, in its view, there was no reasonable prospect of conviction. That count was dismissed. [ 3 ] The defendants moved for a directed verdict on the remaining counts.

After hearing submissions, I ruled that the count of Commit Mischief to Data should proceed as Attempt to Commit Mischief to Data. The motion for a directed verdict on the count of Unauthorized Use of a Computer was dismissed. [ 4 ] The remaining two counts allege the following: that Mr. Livingston and Ms. Miller, during the period Jan. 24 – March 20, 2013, wilfully attempted to commit mischief in relation to data by attempting to delete data from the computers of the Office of the Premier of Ontario, thereby committing an indictable offence contrary to s. 430(5) (

a) of the Criminal Code ; and that during the same time frame, they fraudulently and without colour of right, used or caused to be used, directly or indirectly, a computer system with intent to commit the offence of mischief in relation to data under s. 430(5) , thereby committing an indictable offence contrary to s. 342.1 . [ 5 ] Between May 2012 and February 2013, David Livingston was Chief of Staff in the Office of the Premier (OPO). Laura Miller was his Deputy Chief of Staff with responsibilities for communications and strategy.

[ 6 ] There is no dispute that the defendants enlisted Ms. Miller’s partner, Peter Faist, to erase data from the hard drives of computers used by certain staff in the OPO, as well as their own. On January 24, 2013, Mr. Faist attempted to install a wiping software on Ms. Miller’s computer. He did not succeed because she lacked the necessary administrative rights permitting the application of this software. As a result, Mr. Livingston sought and obtained those rights from the Secretary of Cabinet, Peter Wallace. [ 7 ] During the first week of February 2013 , Mr.

Faist wiped the hard drives of 20 computers in the OPO that were selected by the defendants . The wiping was indiscriminate and without regard to content. There was, however, no admissible forensic evidence presented by the prosecution to indicate what, if any, data was eliminated from those computer hard drives. [ 8 ] My analysis and findings apply to both counts. Each offence charged requires proof of a similar mens rea, or criminal intent.

The main issue on the Attempt to Commit Mischief to Data count is whether the Crown has proven beyond a reasonable doubt that the defendants attempted to destroy data wilfully and without legal justification, excuse or colour of right.

The main issue on the count of Unauthorized Use of a Computer is whether the Crown has proven beyond a reasonable doubt that the defendants acted with intent to commit the offence of Mischief to Data and that they did so fraudulently and without colour of right. [ 9 ] Counsel for the Crown submits that the real question to be answered in this case is why the two defendants directed the wiping of 20 computers in the OPO.

The Crown asserts they did so to ensure that no records responsive to either a Freedom of Information and Protection of Privacy Act request or a future Production Order from the Legislature remained on the computers they selected for wiping. The Crown further submits that Mr. Livingston dishonestly obtained administrative rights by deliberately misinforming Mr. Wallace about the reason why he needed these administrative rights and the manner in which he wished to use them. [ 10 ] Counsel for Mr. Livingston and Ms.

Miller submit that they were justifiably concerned about personal information and Liberal Party documents remaining on the computer hard drives of departing OPO staff, as well as on their own. They say that there were good reasons for lacking confidence in the ability of government IT services to reliably clean the hard drives. That is why they engaged Mr. Faist to perform this task. [ 11 ] Counsel contend that when it became clear to Mr. Livingston that Mr. Wallace’s permission was necessary to do this, he sought and obtained such permission. Further, they submit, Mr. Wallace was aware that Mr.

Faist might be used for this task but he raised no objection. In sum, counsel submit that neither defendant contemplated nor committed a crime.

PART II: OVERVIEW OF THE EVIDENCE [ 12 ] An overview of the evidence is set out in a timeline meant to capture and provide context to relevant events, testimony and e-mails in this case. The timeline follows the “Background Evidence”

section below. A. BACKGROUND EVIDENCE (

i) The Relationship between the Office of the Premier and Cabinet Office [ 13 ] Mr. Livingston was in charge of the Office of the Premier. The staff in that office are not members of the Ontario Public Service. In the parlance of government, they are “exempt staff”. Their job is to undertake the political work of the Premier. [ 14 ] Peter Wallace , Secretary of the Cabinet, was the main witness for the prosecution. He was head of the Ontario Public Service and Clerk of the Executive Council. He was also in charge of the Cabinet Office (CO) [ 15 ] Mr.

Wallace explained that the Cabinet Office is the “ministry” of the Office of the Premier that is comprised entirely of civil servants who are members of the Ontario Public Service. They often have the government experience and continuity that OPO staff generally lack. [ 16 ] The Cabinet Office provides policy and logistical support to the Premier. It also offers administrative support to the Office of the Premier.

While the OPO has control over hiring staff and setting their salary level, responsibility for paying those salaries falls to the Cabinet Office. [ 17 ] The Cabinet Office undertakes other aspects of daily administration, such as providing vehicles and credit cards. In addition, it supplies all physical assets to OPO staff, including computers and Blackberries. The assets are the property of the provincial Government. [ 18 ] Information Technology services are made available through the Cabinet Office.

Computers in the Premier’s Office are maintained by the Cabinet Office’s IT service, referred to as “POCO [Premier’s Office and Cabinet Office] IT”. There were some occasions, however, where outside IT contractors were retained to work on the computers. [ 19 ] Both Cabinet Office and OPO report to the Premier, but not to one another. Cabinet Office provides direct advice to the Premier. Mr. Wallace said he met with Mr. Livingston “nearly every day” in addition to set weekly meetings. [ 20 ] Mr. Wallace explained that the OPO staff was not under the control of the Cabinet Office.

They reported to the Premier’s Chief of Staff. The Cabinet Office gives advice to the OPO but does not direct it. Mr. Wallace explained that while there is no absolute ability for the Premier’s Office to direct the Cabinet Office to do something, the Cabinet Office would generally follow the OPO’s instructions. In the case of a disagreement, the OPO would take the matter to the Premier for resolution. [ 21 ] Senior public servants from the Cabinet Office and other Ministries testified in this trial.

At the time of these events, Linda Jackson was the Assistant Deputy Minister and Chief Administrative Officer in the Corporate Planning and Services Division of the

Cabinet Office. Ms. Jackson reported to Peter Wallace. Among its many responsibilities, her division was responsible for providing training for OPO staff and for the procurement of outside contractors to do work in the Office of the Premier. She attended a meeting convened by Mr. Wallace in January 2013 to determine whether administrative rights should be granted to Mr. Livingston to access OPO computers. She was also asked by police investigators to determine whether a procurement process had ever taken place to use Mr.

Faist to wipe the hard drives of OPO computers. [ 22 ] David Nicholl is and was the Chief Information and Information Technology Officer for the Government of Ontario at the time of these events. He reported to the Secretary of Treasury, who, in turn, reported to Mr. Wallace. Mr. Nicholl is in charge of a cluster of government IT services, including POCO IT. He has known Mr. Livingston since they were both employed by the Toronto-Dominion Bank in the early 1990s. They had also worked together on a number of projects when Mr.

Livingston was the head of Infrastructure Ontario, a position he held for several years prior to becoming the Premier’s Chief of Staff. [ 23 ] Two lawyers employed in the Cabinet Office testified at this trial. William Bromm was Legal Counsel and Special Advisor to the Office of the Secretary of the Cabinet. He reported directly to Mr. Wallace. Don Fawcett was Senior Counsel and Team Leader of the Privacy Law Group in Government Services.

His group in the Cabinet Office is responsible for providing legal advice with respect to the Freedom of Information and Protection and Privacy Act and the Archives and Record Keeping Act . Mr. Fawcett provided legal advice to Mr. Nicholl regarding Mr. Livingston’s request for administrative rights. He also assisted Mr. Bromm in drafting a memo that was prepared for Mr. Livingston about business records retention. Mr. Fawcett was present when Mr. Nicholl discussed this issue with Mr. Livingston on January 31, 2013. [ 24 ] Steen Hume was the Director and Executive Assistant to the Secretary of Cabinet. It was Mr.

Hume who informed Mr. Wallace of a passing comment made by Mr. Livingston that he was considering using Peter Faist to clean the hard drives in the OPO.

He was not called as a witness by the Crown or either defendant. (ii) Documents and E-mails on OPO computers [ 25 ] There was evidence that OPO staff members could access two areas of network storage on their computers: a “G” drive, which contained shared folders that multiple staffers could access and an “H” drive that held a personal folder that only they could access. [ 26 ] Several government guidance documents entered into evidence counselled OPO staff to save work documents only on network drives, and expressly discouraged them from keeping the information on their computer’s hard drive or “C” drive. [1] [ 27 ] Both David Nicholl and William Bromm testified that they expected any records of long-term business value would be saved on network drives, not on hard drives.

Since 2011, the default - save location on OPO desktops was the network. POCO IT technicians encouraged OPO staff to use the “H” drive. Saving files to the C drive, while technically possible, was not a recommended or preferred approach for the reason that files saved to one of the network drives were backed up nightly, whereas the C drives were not. Staff were also reminded of their record-keeping obligations, which included moving retainable records to the network drives. [ 28 ] The Crown called two of the twenty OPO staff whose computer hard drives were wiped. Alexandra Gair, Administrative Assistant to Ms.

Miller, said she could not remember exactly where she saved documents, stating “I think it would sometimes be on my desktop.” Beyond her resume, she could not recall what other documents she kept on her desk top. Rebecca MacKenzie, who at one time worked in “Issues Management” division in the OPO, said she and her team had a strict practice of saving all final work product to the shared G drive.

She never saved anything of consequence to her hard drive, and told the court that the only documents saved to her own computer would have been final products created and sent by others. [ 29 ] The “original” or primary version of OPO e-mails resided on a network server, not on the computer hard drive. Rolf Gitt was a team leader in POCO IT at the time. He told the court that some user-created files were saved on the C drive and that e-mail attachments could be inadvertently saved on the hard drives.

Personal Storage Tables or “PST” folders that contained e-mails were also sometimes saved on the C drive. [ 30 ] Another form of e-mail archive file, called an “OST” file, was automatically created by the Microsoft Outlook software on POCO computers. The OST file was designed to be a local copy of a user’s e-mail account, in order to reduce the need for data to be transmitted over the network. The OST file resided on the hard drive, but if it was deleted or if a new computer was used to access the same e-mail account, the server copy of the e-mails would not be affected.

At this point, the system would automatically create a new OST file and start duplicating the account again. It is uncontested that e-mails primarily resided on, and were backed up to e-mail servers, not hard drives. (iii) Retention and Destruction of OPO records, including e-mails [ 31 ] Some OPO records, including e-mails, are required to be retained pursuant to the Premier’s Office Records

Schedule , established under the Archives and Record Keeping Act, 2006, S.O. 2006, c. 34 , Sched. It states the following: MANAGING RETENTION AND DISPOSAL OF RECORDS The official government records created and maintained by and for the Premier’s Office are important government resources, critical to supporting and documenting official decision-making and the government’s relations with the public.

Often they include the sole copy or authoritative version of a record documenting a decision made, information received, or action taken-information crucial to knowing what steps were taken in response to an important government policy or program issue. Some documentation may also need to be retained to meet potential long term legal and archival needs. Retention of these records is critical to enable prompt access when needed and ensure that documentation of official decisions is preserved in a consolidated form. Properly managed retention and disposal of these files are critical.

RECORDS TO WHICH THIS SECHEDULE APPLIES This

schedule applies to all records (unless specifically excluded by this schedule) created, maintained or used by the Premier, Parliamentary Assistant(

s) or their staff in the course of managing and administering the Premier’s government responsibilities. The records of the Premier’s Office are the property of the Crown. They include records and data in all media, paper and electronic, including electronic mail. They relate directly to the Premier’s and Parliamentary Assistant’s government responsibilities and are distinct from their personal papers, constituency files and party records.” [2] [ 32 ] The

Schedule sets out the kinds of records that are mandatorily retained, including: “records of internal deliberations involving the Premier and the Premier’s staff on matters relating to the Premier’s or Parliamentary Assistant’s official responsibilities” and “notes and files created and held by the Premier’s, Parliamentary Assistant’s and other Premier’s Office staff regarding the day to day actions, activities and responsibilities of Premier, Parliamentary Assistant(

s) and staff”. [ 33 ] The

Schedule establishes a disposition process in the Premier’s Office in the event of a change of premier. The impugned conduct of the defendants allegedly occurred during a transition period between Premiers. Under the

Schedule records relating to the administration of the Premier’s Office, such as Premier’s Office correspondence files and business planning and budget files, are to be transferred to the Archives of Ontario. Similarly, policy and program files developed in the Premier’s Office are also to be transferred to the Archives. [ 34 ] The

Schedule explicitly states that certain kinds of e-mails are not required to be retained and should be deleted to avoid over-burdening the e-mail system. It instructs OPS staff to cull and delete e-mails containing “transitory records”, intra-ministry e-mails where they were not the original sender, in addition to e-mails outside the ministry where others have primary functional responsibility for the matter involved. Transitory records are defined as “records of no ongoing value”.

These would include records which “represent no significant steps” in showing how government policies or programs were developed and implemented. Private personal records and e- mails are not required to be retained and should be deleted.

Other non-retainable documents are political records, such as constituency files or party records, including caucus files, party leadership files and election campaign records. [ 35 ] A directive, entitled “The Fine Art of Destruction: Weeding Out Transitory Records” that contained similar information was also introduced into evidence. [3] This directive is intended to guide Ontario government workers with regard to the retention and disposal of their records. In particular, it assists staffers in determining when a record can be considered transitory.

It instructs that transitory records should be deleted when no longer required, and that regularly deleting records is important. This directive also states that when working on a project, a secretary should be appointed to keep a complete set of records, so that “information copies distributed to other parties may be safely discarded as transitory”. [ 36 ] The Freedom of Information legislative scheme does not impose any obligation to retain records before an FOI request is received but, “business records” under the Premier’s Office Records Schedule, are required to be retained.

Public servants are entitled to delete transitory records until an FOI request is received, at which point they have to search and produce everything that they have. [ 37 ] Senior government IT specialists, called as witnesses, agreed that the correct and effective way of deleting an e-mail permanently required a simple two-step process called “double deleting”. One deletes the e-mail first and then deletes the e-mail from the “Deleted Items” folder.

Similar guidance is also found in the E-mail Guidelines for the OPS . [4] (iv) E-mail accounts and hard drives of departing OPO staff [ 38 ] The basic policy around wiping a hard drive is found in the Ministry of Government Services’ policy, entitled “Operating Procedures for Disposal, Loss and Incident Reporting of Computerized Devices.” The policy states that the normal approach to “sanitizing computerized assets” is to wipe the computer’s hard drive using industry-accepted tools by an “approved vendor.” Upon completion of the process, the vendor must issue a Sanitization Report that is to be retained by the Ministry for three years.

The policy details that hard drives must be sanitized in one of two ways: by overwriting the hard drives or, if they cannot be overwritten, destroyed. The policy goes on to state that “wiping should follow the National Computer Security Center Standard. For a hard disk that contains high sensitivity information, the ‘three time erasure’ option must be selected”. [5] [ 39 ] There was conflicting evidence on whether this policy was followed for computers in the Office of the Premier. Mr. Gitt testified that his POCO IT team did have a wiping tool which they used occasionally.

Their preference was to replace the hard drive when an employee left, rather than wipe it. POCO IT would have a service technician come on-site and do a physical destruction of the hard drive that was then removed. Ms. Jackson, who investigated this issue herself, agreed with the suggestion on cross-examination that there was evident uncertainty, even among POCO IT staff, about whether POCO IT would wipe the hard drives once they had been removed from the computers. [ 40 ] With respect to e-mail accounts, Ms. Jackson and Mr.

Bromm testified that it was established procedure in the years prior to the transition period from Premier McGuinty to Premier Wynne that an OPO e-mail account would be deleted upon the departure of an employee. Ms. Jackson explained that the hope was that the employees would manage their records appropriately prior to their departure, and then their accounts would be deleted. The Cabinet Office controlled when e-mail accounts were deleted, and had the authority to do so. Purging the account meant that the account, and its e-mails, would be permanently deleted. [ 41 ] Mr.

Bromm testified that there was an established procedure with regard to transition: first, the departing office would be reminded of their record-keeping obligations under the Archives and Record Keeping Act , and were given a contact person in the Cabinet Office, in addition to a memorandum that explained what to do if they required more information. The POCO IT crew would then take the computers and the other equipment used by the office and prepare those computers for use by the next office.

That usually involved going through the equipment, wiping the hard drives and making sure there were no records on the hard drives. The e-mail accounts themselves were permanently deleted or “decommissioned.”

(

v) Occasional frustration within the OPO with POCO IT [ 42 ] Thom Stenson was in charge of POCO IT at the time of these events. His team of technicians provided IT services to all members of POCO, “including desktop support, blackberries, printers, network support as well as e-mail support”. Mr. Stenson testified that POCO IT had between 300-350 “clients” across POCO. Because his team was embedded in POCO, his technicians were able to provide a higher standard of service than was found in the rest of the Ontario Public Service.

He described the role of POCO IT as providing “direct desktop support for the senior folks in cabinet and Office of the Premier. We ran a help desk line. If they had a problem, we came and solved whatever problems. We would do software upgrades for them and support printers, scanners and things like that.” [ 43 ] Mr. Gitt testified that his team provided three “tiers” of service. One tier was a help desk just for POCO staff. A second tier involved on-site desktop assistance. Tier 3 covered “back end infrastructure”, for example, if someone were unable to access his or her network drive. Mr.

Gitt, in fact, built all the servers and infrastructure for POCO. He described the agency as “more efficient”, with less waiting time than in the rest of government generally. He testified that OPO staff had a program on their computers , called “Citrix”, which allowed them to connect to the Liberal Party or Liberal Party computer networks. Mr. Gitt said that both POCO IT and the Liberal Party provided technical support for Citrix users. [ 44 ] There was evidence that some within POCO experienced frustration dealing with POCO IT.

Linda Jackson said that it wasn’t always responsive or effective as the OPO might like , and that some OPO staffers had expressed dissatisfaction with POCO IT to her. In his evidence, Mr. Wallace adopted a statement he made to the police that, “IT around here…is not particularly responsive, doesn’t always know what it’s doing” , and that Mr. Livingston was “royally pissed off with IT.” Ms. Alexandra Gair, Ms.

Miller’s Executive Assistant, testified to miscommunications with POCO IT, and said that they could be frustrating to deal with. [ 45 ] There was evidence that on occasion, some OPO staff had difficulty permanently deleting e-mails, that e-mail accounts were not decommissioned properly and that some hard drives of departing OPO staff were not wiped completely. B. TIMELINE OF RELEVANT EVENTS, TESTIMONY AND E-MAILS The following timeline is intended as an overview of the evidence presented in this trial.

It captures chronologically significant events, testimony and e-mails. [6] MAY 2012 David Livingston becomes Chief of Staff to the Premier of Ontario. In the summer and fall of 2012, a decision by the Government of Ontario to cancel a plan to build and relocate the Oakville and Mississauga gas-fired power plants dominates political discussion at Queen’s Park. The gas plant decision is a major issue in the October 2011 election that results in a Liberal minority government under Premier McGuinty.

Because there is minority government, members from the Opposition parties control Standing Committees in the Legislature. May 1: Minister of Energy Chris Bentley is called to appear before the Standing Committee on Estimates inquiring into the government’s decision to cancel and relocate the gas plants. May 9: The Minister appears before the Committee. He faces questions on the gas plant closures and their associated costs. He declines to answer questions, citing solicitor-client privilege, litigation privilege and the commercial sensitivity of ongoing negotiations.

May 16: The Committee orders the Minister, the Ministry of Energy and the Ontario Power Authority to produce all correspondence related to the Oakville and Mississauga gas plants. The Committee sets a deadline of May 30. Mr. Bromm provided advice to Mr. Wallace and the OPO that committees operate under parliamentary privilege , which affords the legal power to compel the production of relevant documents. It is a power they can exercise by passing a motion on their own without requiring a motion from the House. In his testimony, Mr.

Bromm explained that when documents are disclosed to a committee, it decides whether to make them public. If it so decides, there is no recourse, nor is there any form of privilege, such as solicitor-client privilege, that can stop the committee from releasing documents. Further, once the documents are released, there are no conditions attached. They are fully accessible to the public and the media can publish them. May 30: The Minister sends the Chair of the Committee a letter advising that he declines to produce the records requested because of solicitor-client privilege and their commercial sensitivity.

JUNE-JULY 2012 June 5: The Opposition tables a motion to report the Minister of Energy to the House for a “possible matter of contempt and a breach of the ancient parliamentary right of privilege” because he refuses to comply with the Production Order from the Committee. Mr. Bromm explained that Standing Committees can only report the refusal to provide the requested documents. The House then takes it up as a matter for debate and decides whether the refusal amounts to contempt. There was no debate in the House at this point in time.

July 9: The Government announces a settlement with the proponents of the Mississauga gas plant. July 11: Mr. Bentley provides the Committee with partial disclosure of documents related to the Mississauga gas plant. He declines to disclose some documents that he claims are protected by solicitor-client privilege. He does not provide any documents concerning the Oakville gas plant , claiming solicitor-client privilege, as well as the confidentiality and commercial sensitivity of ongoing negotiations.

The Minister was unable to inform the Committee whether it was the Premier who decided to cancel the proposed Mississauga gas plant prior to the 2011 election. During the month of July, there are several e-mail exchanges between senior members of the OPO, including the defendants, discussing communications strategies available to the Minister of Energy to manage the Standing Committee Production Order issue , as well as the looming contempt motion against him. David Phillips, Chief of Staff to the House Leader, participates in a number of these e- mail discussions.

Some of the e-mails refer to the gas plant file by its government code name “Vapour” or “Vapour Lock”. [7] AUGUST 2012 Mr. Wallace discusses record retention with Mr. Livingston and Mr. Livingston discusses deleting e- mails with Mr. Nicholl Mr. Wallace testified that the issue of retention of gas plant-related documents was a “dominant”, “highly visible” and “central focus of discussion’’ in the Cabinet Office and Office of the Premier. This was a time of “considerable tension”. The Secretary was “extremely concerned” that records in the possession of the OPO relating to the gas plants would not be retained.

The Production Order from the Standing Committee was directed to the Minister of Energy, the Ministry of Energy and the Ontario Power Authority, a government agency. Both the Ministry and the Power Authority had responded with what Wallace termed “a massive amount of disclosure”. However the Minister of Energy and his office had advised the Committee that they had no responsive records. Mr. Wallace believed that this was not the case. The Secretary spoke to this concern directly in his evidence.

He testified that he was “acutely worried that the Office of the Premier and, through them, the Minister of Energy, is not in compliance with a legally binding order”. He went on to say that as the head of the Ontario Public Service, “…it’s obviously a position of extreme discomfort to me to have a situation in which a Minister is not in compliance with a legal requirement…This was an extraordinarily powerful issue in the Legislature and the Standing Committee… was working towards a contempt finding”. Mr.

Wallace solicited legal opinions from lawyers within and outside of government on whether the disclosure sought by the Standing Committee was “fully required”. The “universally clear answer” received was that it was. He told the court he understood that “from a legal perspective there was absolutely no choice but to provide full disclosure to the Committee”. He wanted to ensure that the OPO “had the benefit of our understanding of the authority of the Standing Committee and the need to respond with best efforts to the request for information.” The Secretary then asked his legal counsel, Mr.

Bromm, to prepare three memoranda to assist him for a briefing he wished to have with Mr. Livingston. The first memo concerned the legal authority of a Committee of the Legislative Assembly to require the government to produce records. The second memo described the options available to the government to address Production Orders of a Committee. The third set out the legal requirements related to the retention, deletion and subsequent search of government records. Mr. Bromm testified that since July, Mr. Wallace had become increasingly concerned that the Minister of Energy may be found in contempt.

He noted that, “that’s particularly difficult in a minority parliament because it was only two years earlier that the federal government had been found in contempt for the failure to disclose documents…As a result of being found in contempt, there was a non- confidence motion and the government fell…so [Mr. Wallace] was understandably concerned that there was a particular path [the Minister] was on that might be dangerous…and he wanted to be absolutely certain that everyone understood what could occur when this matter was reported.” Hence the reason he was asked to draft the memoranda. August 1: Mr.

Wallace and Mr. Livingston meet. The Secretary described their conversation as “tense”. He said: “I provided him the gist of the three pieces, and, as was already well known, there was a legal obligation to disclose, that there is a way of disclosing that could protect some impacts of the public interest and that there was an obligation to retain any relevant records”. He did not think that Mr. Livingston found the conversation “particularly useful” because the defendant’s response was, “That’s political bullshit”. Later that day, Mr. Livingston e-mails Ms.

Miller, David Gene and David Phillips to say that he spoke to Mr. Wallace and that the Secretary would be providing him with “something on Committee process and retention policies”, which he would share once it was received. [8] Mr. Wallace testified that in early August he had another conversation with Mr. Livingston who “wanted to understand that if an e-mail were deleted...was there a way of ensuring that that e-mail was not captured in an archival type of process.

He understood that e- mails, when initially deleted, may not actually disappear from the system, but may default to a trash box or some other holding pattern or mechanism within the software program and that might become backed up because the Government of Ontario, in conjunction with all other large organizations produces periodic backup tapes for continuity purposes...essentially what he wanted to know is how to ensure the documents deleted were not inadvertently captured by the backup tapes.” Mr. Wallace suggested he consult someone who was familiar with the “mechanics” of the e-mail system. Mr.

Livingston then spoke to David Nicholl, Corporate Chief Information Officer of Ontario. He expressed concern that people who had left OPO in the past had found that their e-mail accounts were still open when they returned to work in the OPO sometime later.

He asked Mr. Nicholl how e-mails could be permanently deleted. Mr. Nicholl explained the protocols for decommissioning the e-mail accounts of departing staffers. He also told Mr. Livingston about the mechanics of e-mail deletion, in particular, the two steps required to properly delete e-mails, often referred to as “double deleting”, that is, deleting the e-mail first from your inbox or sent messages, and then deleting the e-mail from the “deleted e-mails” folder. Mr. Nicholl also explained how the backup tape system worked. The backup tapes were not for archival purposes, but rather for system-restore purposes.

If an e-mail was still in existence when the backup tape was made, that is, it had not been double deleted, it would be backed up for a minimum of 14 days. Mr. Livingston e-mails his Deputy Chiefs of Staff on August 9 about “double-deleting” August 9: Mr. Livingston e-mails David Phillips, Chief of Staff to the Government House Leader and the OPO Deputy Chiefs of Staff, including Ms. Miller, about “double deleting” their e-mails.

He writes: “I don’t really have a strong desire to be e-mail monitor for the Premier’s Office, but I have talked to David Nicholl since our staff meeting and have learned a couple of things that I will leave to you to manage for yourselves and with your staff: 1. If e-mails are “double deleted” (meaning deleted from and [sic] Inbox and Delete file), then they are gone and cannot be retrieved. This means for any reason – if it happens in error and an attempt is made to recover an e-mail, it will be unsuccessful. 2.

Premier’s Office e-mails are “backed up” for 2 weeks in case of a systems breakdown and there is a need to recover essential data. What this means to the double deletes is that if the double delete does not happen the day an e-mail is received, then a copy of that e-mail will be in the back up for 2 weeks notwithstanding it is now permanently gone from the system. However, back ups are not part of the system that is accessed for FOI purposes so they have never been used to satisfy an FOI request. As such, I don’t think we need to worry about this back up process. 3.

If an e-mail that is double deleted has been forwarded, then the Sent file will also have to be deleted. However, if the e-mail was sent inside the system to someone who did not double delete, then it is still accessible at the other end. If it was forwarded inside the OPS, then even a double deleted file at the other end will still be accessible for a short period of time (perhaps a couple of weeks). 4. Finally, when someone leaves the organization, if their e-mail address is not cancelled, then any e-mails they may have received will be on line and available.

Emily is going to work with HR to delete addresses for those that have left, make sure any e-mails hanging around are double deleted and develop a process to make sure this happens as a matter of course when people leave going forward. Having said all this, nothing is more confidential than talking rather than writing! I hope this is clear and helpful. Please let me know if it isn’t. Please also figure out how you want to communicate this to your staff. Thanks.

David” [9] At least one recipient, John Brodhead, Deputy Chief of Staff, Policy and Cabinet Affairs, arranges for key portions of the e-mail, including the reference to the backup tapes and the FOI process to be transmitted to other OPO staff members. Emily Jephcott, Executive Assistant to Deputy Chief of Staff, Policy and Cabinet Affairs, forwards the contents of the double delete message to other policy colleagues in the OPO. One of those individuals responds “Just reading this, so no more triple delete?” Ms. Jephcott responds “Apparently not!

I’ve stopped taking the extra step.” [10] August 27: The report of the Standing Committee is tabled in the House. In accordance with Legislative Assembly protocol, an Opposition member asked the Speaker to rule on whether the Minister of Energy’s refusal to comply with the order of the Committee is a prima facie case of contempt or a breach of privilege. Mr. Bromm has a discussion with Mr. Livingston and others.

He testified that “a bunch of people were outside my office talking about whether committees could force a Minister to produce any documents…I explained the privileges of the House again and that they could force a Minister to produce any documents they thought relevant”. Mr. Bromm recalled that Mr. Livingston thought that particular power was “ridiculous” Mr. Bromm conceded in cross-examination that Mr. Livingston “wouldn’t have been alone in thinking this”.

SEPTEMBER 2012 During late August and throughout September, OPO staff, including the defendants, send, receive or are copied on e-mails concerning communication strategies to manage the contempt motion against the Minister of Energy as well as other gas plant related issues. [11] September 11: Mr.

Livingston e-mails Minister of Energy Bentley offering to reach out to “senior people inside Trans Canada ” (one of the proponents of the Oakville gas plant contract)…I can see value in doing so and there is no reason why a meeting needs to be a negotiation within a negotiation.” September 13: The Speaker rules that the Minister of Energy committed a prima facie breach of privilege but suspends his ruling to provide time for the House Leaders to negotiate a resolution.

September 15: The Standing Committee on Public Accounts passes a motion directing the Auditor General to review the costs associated with the cancellation and relocation of the Mississauga gas plant. September 24: There is an announcement of a settlement between the government and the proponents of the Oakville gas plant. The

Minister of Energy and Ontario Power Authority file a disclosure package of gas plant - related documents with the Clerk of the House. September 25: The Speaker makes a second ruling on the contempt motion. He finds that because the Opposition parties claim that the Production Order has not been fulfilled to their satisfaction, the House remains seized of the matter. As a result, the Speaker finds that a prima facie case of privilege/contempt continues to exist despite the fact that the Minister has produced documents.

Parliamentary convention requires that any question of breach of a privilege or a contempt by a Member of the House be reviewed by a Standing Committee of the Legislature. The Opposition member who brought the original contempt motion against the Minister of Energy moves to refer the alleged breach of privilege/contempt matter to the Standing Committee on Finance and Economic Affairs. OCTOBER 2012 October 2: The Legislature adopts the motion to refer the contempt issue to the Standing Committee on Finance and Economic Affairs.

David Livingston and David Phillips e-mail each other about whether the contempt process could continue after prorogation or another election. On October 3, Mr. Livingston forwards this e-mail exchange to Ms. Miller. [12] October 4: A list of potential witnesses to be called by Opposition members of the Standing Committee for the gas plant hearings is released. The list includes David Livingston and Laura Miller. Ms. Miller comments in an e-mail “No Dave Gene. Fascinating.” Mr.

Gene was OPO Deputy Chief of Staff, Operations. [13] October 10: An FOI request is received by OPO officials, including the defendants, for e-mails, memos and calendar invitations that make reference to “Project Vapour” or “Project Vapor” during the calendar years 2010, 2011 and 2012. This request was with respect to the Oakville Plant. Mr. Bromm testified that Project Vapour or Vapor was the project name for the relocation of the Oakville Plant and that “Project Vapour Lock” referred to the project to relocate the Mississauga gas plant. Mr.

Wallace confirmed that it is common for code-names to be used in government to refer to sensitive business matters that require a high level of confidentiality. After receiving the request, the Cabinet FOI Coordinator and a designated person in the OPO identified relevant custodians and put together search instructions. All the custodians, including Mr. Livingston and Ms. Miller, had responded that they had nothing responsive, except one person, who delivered records that fell outside the date range in the request. [14] The requester, learning of the “nothing responsive” answer, appealed the matter.

In response to the appeal, the Cabinet Office decided that the OPO should reconfirm the search, with more detailed instructions and included another OPO member in the list of custodians. This was done and the answer was still that nothing responsive had been located. October 12: The Ontario Power Authority and Ministry of Energy release a further 20,000 documents related to the cancelled gas plants. This is just a few weeks after the Minister informed the Legislature that all documents relating to the gas plants had been made public.

News stories included in an e-mail circulated among OPO staff report that the Opposition parties were calling for the resignation of the Minister of Energy. Ms. Miller e-mails her colleagues saying “Well we were prepared for Armageddon. Neala, you sending this to the boss.” [15] October 13 : Mr. Livingston e-mails Ms. Miller, asking whether she thinks he should reach out to certain journalists “on gas plants to add further weight to our position (as another senior source so to speak)?” [16] On October 15: Premier McGuinty announces his resignation and prorogues the Legislature.

Prorogation automatically terminates all business of the Legislature, including the work of the Standing Committee looking into the gas plant issues. October 16: Ms. Miller e-mails a colleague to indicate that a particular journalist is inquiring about whether prior to his resignation, the Premier held meetings on how to manage the gas plant issue and whether he resigned and prorogued the House in order “to make the issue disappear” for the Minister of Energy. [17] October 17 - October 24 : Ms.

Miller sends, receives or is copied on e-mails regarding gas plant issues , including comp liance with FOI requests and communications strategy to deal with media. [18] October 24 : Ms. Miller responds by e-mail to the October 10 FOI request with “I have conducted a search. I have no responsive e- mails.” [19] October 26 : Mr. Livingston e-mails Don Guy, a former Chief of Staff to the Premier, about the government possibly pursuing a judicial reference in relation to pending gas plant investigations. Livingston attaches a memo, dated October 14, prepared by Mr.

Phillips, titled Confidential Advice to Premier - Proposal re: Judicial Reference . [20] October 29: Mr. Livingston e-mails Mr. Brodhead, OPO Deputy Chief of Staff, Policy and Cabinet Affairs to say “ Getting the Gas Plant Agreement with Trans Canada signed should go on the Category 1 Priority List. The deadline is December. Thanks.” [21] Later that day, Mr. Phillips e-mails Mr. Livingston, copying Ms.

Miller, with “an overview of some of our legal and parliamentary procedural options regarding the threats made against Minister Bentley and the allegations made against Premier McGuinty in recent weeks re gas plants.” This attached memo is titled Legal Options Re: Opposition Tactics Relating to Relocation of Oakville and Mississauga Gas Plants . Mr. Phillips suggests one option is a reference to the Court of Appeal for Ontario regarding the use of parliamentary privilege.

Another is launching a civil action against the Leader of the Opposition for the tort of defamation against the Premier. [22] NOVEMBER-DECEMBER 2012 November 7: The Office of the Premier responds to the latest FOI request , stating that records in relation to “Project Vapour” did not exist.

November 9 : Rebecca Mackenzie e-mails Ms. Miller and other OPO colleagues a news article. An NDP member of the Legislature has accused the Premier’s Office of “extraordinary stonewalling” after the FOI request relating to “Project Vapour” resulted in no documents being produced. The member says that previously released e-mails from the Premier’s Office “prove without a doubt” there are more documents about the cancelled gas plants. Ms. Miller replies “How are we responding?” To which Ms. Mackenzie answers: “The e-mails the NDP have put forward are between former staff.

Their inboxes are deleted when they leave government.” Ms. Miller then asks , “Do we have someone to go on camera to say that?” [23] During this period, the OPO receives FOI requests pertaining to issues other than the gas plants. On November 9, Ms. Miller asks for and receives a slide deck , titled Prorogation and Document Production - Strategic Options , prepared by staff of the Government House Leader as “confidential advice to the Office of the Premier”. That presentation deals with the timing of the release of records associated with the Ornge air ambulance and eHealth controversies. [24] November 9: Ms.

Miller e-mails Mr. Livingston “FOI This” and then refers to an Opposition member as “an asshole”. Mr. Livingston responds “LOL! This one will never get the Double Delete.” [25] November 15: There is an e-mail exchange with colleagues where Ms. Miller asks why she received a particular e-mail. One staffer replies “Wait, just saw it. Roger. Have been dealing with it by phone.” Another staff member replies “Sorry about that – was trying to get you guys asap. Talked to Dave.

Will delete my copies”. [26] November 16: A Notice of Appeal relating to the October FOI request regarding “Project Vapour” is filed asking for a review of the response from the Office of the Premier. November 22: The OPO receives a second FOI request which states , “A political party has requested access to e-mails internal to the Cabinet Office and/or the Office of the Premier in respect of responding to FOI Request 12/39 (records regarding Project Vapour/Vapor) and the subsequent media response.” OPO staff, including Ms. Miller and Mr.

Livingston, are asked to conduct their searches for the period of October 9 to November 15, 2012, and to send their results by November 30. There were responsive documents collected from some OPO staff in respect of this request that were produced. [27] December 3: Mr. Livingston circulates a transition plan regarding the office, its staff, security, residence and miscellaneous matters with respect to the outgoing Premier. [28] Mr. Bromm and Ms.

Jackson of the Cabinet Office decide to secretly “freeze” all e-mail accounts of departing OPO staff In his testimony, William Bromm described the usual procedure for decommissioning e-mail accounts of departing staff of the OPO during a transition period: “We have a process where our IT individuals would take the computers…and would wipe the hard drives …making sure there were no records on the hard drives.” E-mail accounts of departing staff are “basically deleted”. In late November or early December, Mr. Bromm and Ms.

Jackson decided not to follow the usual practice and to treat e-mail accounts differently during the transition from Premier McGuinty to Premier Wynne. As Mr. Bromm explained, “instead of deleting the accounts, they would suspend the accounts. “[The account] would no longer send or receive e-mail but whatever content was in the account on the day the staff member departed would be frozen, and if we were ordered to conduct a search in January, we could unfreeze that account and search it.” Ms.

Jackson added that “whatever was in that e-mail account on the day it was frozen and would still be there when it was turned on the next time.” However, as Mr. Bromm explained, “individuals were still left with their accounts up until [the day they left] and could manage their account in accordance with their records requirements…but…if they had deleted everything, what we had frozen was an empty account.” According to Ms. Jackson, Mr. Bromm had approached her with the idea in light of the number of FOI requests before the Cabinet Office and the OPO. Mr. Bromm justified this decision. Both he and Ms.

Jackson were acutely aware of the outstanding FOI requests with regard to the gas plant transactions. “We decided it would be difficult to explain in the face of an FOI appeal in particular that we followed our normal process and completely deleted and decommissioned e-mail accounts from individuals who might actually have records relevant to an appeal.” Another FOI request with different search terms would, as well, require another search.

He said: “We were uncomfortable if we decommissioned and deleted all of these accounts because as part of the appeal process if we were ordered to do a new search, it would have been very awkward for the Secretary of the Cabinet to say ‘oh, we deleted all these accounts’.” Mr.

Bromm testified that even though the Legislature had prorogued, and the business of the Standing Committees of Estimates and Finance and Economic Affairs was finished, “there was a risk that in the new parliament, the matter would be revived, and that as part of that revival, all of the questions about producing documents could come up and we would not want a Secretary or a Premier to say we are not in a position to do a search because all of those accounts have been deleted.” Mr.

Bromm further explained that in order to avoid a government trying to get out from under a point of privilege by proroguing the Legislature, a member could revive the point of privilege in the next session. Mr. Bromm testified that neither he nor Ms. Jackson disclosed the change of policy to the defendants or any departing OPO staff because, “we did not want to be put in a position not to be able to do it.” Mr.

Bromm also said that, “in the discussion with [Premier] McGuinty, there was discussion about… [making] sure that the records of his administration were to be treated as records of a separate administration from Premier Wynne’s administration”.

JANUARY 2013 January 15: The Office of the Premier receives a new FOI request for “access to all records sent or received in the period January 1, 2012 through October 1, 2012 by the Premier, the Premier’s office, consultants to the Premier’s office, or advisors to the Premier’s Office relating to the construction, contracting, relocation, or any other arrangements associated with the gas-fired plants once contracted for development in Oakville by the firm TransCanada Energy or related entities and also Mississauga by the firm Eastern Power or related entities”.

Members of the OPO are asked to respond by January 17. Mr. Livingston receives the request at 6:48 p.m. At 7:17 p.m.

he responded “Nothing here”. Ms. Miller responds on January 24 to say that she has no records. [29] Other OPO staff produce responsive records which are gathered and sent to the Cabinet Office before January 31. [30] Peter Faist is hired by the Liberal Party Caucus to wipe the hard drives of computers in the OPO Peter Faist is Ms. Miller’s partner. They were living together in 2012 and 2013. Mr. Faist was self-employed as an IT consultant. Around the beginning of January, 2013 , Ms. Miller asked him whether he knew anyone who could “clean the personal data off of the machines in the office”. Mr.

Faist offered to do the job. January 9: Dave Gene was the Deputy Chief of Staff, Operations in the OPO. Mr. Gene, using his Liberal Party e-mail address, sends an e-mail to Mr. Faist asking , “Hey were you looking into wiping our computers?” [31] Mr. Faist then met with Mr. Gene at Queen’s Park to discuss whether the task was “feasible”. He agreed in cross-examination with the suggestion that Mr. Gene asked him “to wipe personal data off of some of the computers of departing staff of the Office of the Premier.” The job would involve wiping the hard drives of approximately 20 computers. January 10: Mr.

Faist purchases software called “WipeDrive SystemSaver” manufactured by a firm called WhiteCanyon. The cost of the software was $39.95. Mr. Faist testified that it is designed to clean data without harming the operating system of a computer. [32] January 21: Mr. Faist e-mails Mr. Gene to ask, “we doing this?” Mr. Gene replies, “This week I will chat with Laura today.” Mr. Faist then e-mails Ms. Miller to say “I suspect it won’t have much impact on your day to day ops. It doesn’t impact your e-mail. Just make sure you backup all your files to an external usb key.

If you need one, I can provide those too.” [33] January 23: Mr. Faist e-mails Mr. Gene, asking, “When do you want me to start? Getting close. fair bit of work”. [34] January 24: Mr. Faist successfully tests the “WipeDrive” software on his own computer system. Ms. Miller e-mails Mr. Gene, copying Mr. Livingston, with the subject line “Pete’s Project”. She writes, “takes 3-4 hours per desk. He can start tomorrow on the three of ours if that’s ok.” Mr. Livingston replies, copying Wendy Wai, his Executive Assistant, “Good by me. Thanks!” Ms. Wai then asks “Do I need to block time in David’s calendar?

Can you enlighten me as to what the project is about?” Ms. Miller responds “Pls. I need time when he’s not at his desk.” [35] On January 24, Mr. Faist tests “WipeDrive” on Ms. Miller’s work computer at Queen’s Park. The test proves unsuccessful because Ms. Miller lacks the kind of administrative access that would permit the installation of this software. He testified “I recall saying something to Laura like I’d have to get permission to do this because you don’t have the appropriate rights on this machine…the appropriate access is a better term”.

This kind of access was referred to by various witnesses at different times during the trial as “administrative rights” or “local administrative rights” or “administrative access” or “administrative passwords”. While the terminology may differ, it is clear that what was really required was authorization. Mr. Faist testified that had the WipeDrive SystemSaver not required administrative rights, he would have continued to use the software to wipe the hard drives of computers in the OPO. Mr. Livingston requests Mr. Wallace’s authorization to wipe OPO hard drives Following Mr.

Faist’s failed attempt on January 24 to wipe Ms. Miller’s computer hard drive, Mr. Livingston sought to obtain the necessary administrative rights from the Secretary of Cabinet, Mr. Wallace. Granting a “normal user” administrative rights over multiple computers was highly exceptional and required authorization from Mr. Wallace. Mr. Stenson testified that in all of his 27 years in the Ontario Public Service, he had never provided this kind of administrative access to someone who was not in IT. Mr. Stenson and Mr. Gitt both testified that this was an “unusual request”. Mr.

Nicholl told the court that he had never heard of a similar request of this nature. Mr. Wallace said that, in the circumstances of the transition, he reserved to himself the authority to make that decision. He made clear that no one else had the authority to grant these rights. On or about January 24, Mr. Livingston told the Secretary that he was interested in “obtaining access to administrative passwords that would allow him to clean or overwrite hard drives” in the OPO. Mr.

Livingston informed him that there was “personal information” available on the hard drives and that he wanted to make sure “it was cleaned up.” Mr. Wallace advised Mr. Livingston that “if he was planning to overwrite his hard drives or planning to leave a situation in which there were no records associated with the former Office of the Premier – this was at the point of transition – that it would be very concerning, and I indicated to him that…the only type of organization that didn’t keep records was a criminal organization.” The Secretary said he felt that Mr.

Livingston did not find this observation to be “particularly helpful”. Mr. Wallace went on to testify that in this discussion, Mr. Livingston never indicated who in the OPO would be using these administrative rights, nor did he provide any further information regarding their intended use. January 25: Mr. Livingston has a telephone conversation with David Nicholl. Mr. Nicholl testified that Mr. Livingston raised the same concern he did in their August, 2012 conversation about e-mail accounts of departing staff remaining open. Mr. Livingston wanted to prevent this from happening again. Mr.

Nicholl attempted to reassure him “that things were working well and that Terri Lang (from OPO Corporate Planning and Services) and the Cabinet Office were on top of things.” Mr. Livingston then asked Mr. Nicholl “for the ability to get an administrative login ID and password for the Premier’s

Office”. Mr. Nicholl advised him that only the Cabinet Office could authorize such a request. He was told that he would need to speak to Linda Jackson, the Assistant Deputy Minister, who “speaks for Peter Wallace”, and Scott Thompson, one of the Secretary’s deputy ministers. Mr. Nicholl described the conversation with Mr. Livingston as “all in the context of clearing up and preparing for a new team coming in.” He did not recall the defendant advising who in the OPO would be using the administrative password. What Mr.

Livingston did say was that he wanted the e-mail accounts of departing staffers properly removed, and that OPO departing staff did not want confidential information “lying around on their computers”. Mr. Nicholl agreed in cross-examination that at the time, he considered Mr. Livingston’s request to be reasonable. When asked during examination-in-chief about the documents the defendant was concerned with, Mr. Nicholl remarked “he was concerned about the e-mails left behind”. He also agreed with the suggestion made in cross-examination that his concern was around protecting confidential information. Mr.

Nicholl adopted a statement made to investigators that he understood that the items to be cleared off of the hard drives would be personal documents. Later that day, Ms. Miller e-mails Mr. Livingston inquiring , “Any luck with the admin code?” Mr. Livingston replies, “Not yet. All roads lead through Linda Jackson, including getting access to our e-mail accounts terminated. I am now working though Scott [Thompson] and Peter [Wallace]. I will keep you posted.” [36] Mr. Wallace learns that “an outsider” might be wiping the hard drives of OPO computers Mr.

Wallace testified that he did not know that Peter Faist would be wiping the hard drives of computers in the Office of the Premier. However, he acknowledged that his executive assistant, Steen Hume, told him that Mr. Livingston had “made a passing comment to Hume that , “there might be potential to bring in somebody from the outside…indicated it might be the life partner of Laura Miller.” Mr. Wallace was emphatic that he “placed no weight on this whatsoever.

It was simply something that I took – deeply with regret in retrospect – but it is something that I took as a passing comment that was so far beyond the norms and established behaviours of the Government of Ontario and my prior interaction with the Office of the Premier, that I placed no weight on it. In [Mr. Livingston’s] direct conversation with me, he had not mentioned it. There had been no other conversations relayed to me of the potential for an outsider… [I]t did not occur to me that anyone could actually do that.” Mr.

Wallace testified that the Ontario Public Service provided “wraparound IT service” to the OPO and that the “notion” of an “outsider” performing this kind of task was “simply not something that penetrated my consciousness”. In cross-examination, Mr. Wallace reiterated, “I did not know, nor did I place any weight whatsoever on the possibility that an external individual would be brought in. That was not brought to my attention in the conversation by Mr. Livingston. Had that been brought to my attention, I most certainly would have flagged that…We took it as a passing frustration.

It was simply so far outside our understanding that somebody would actually do that, frankly we did not take it seriously.” Mr. Wallace acknowledged that he was aware that Mr. Livingston was frustrated with the Cabinet Office IT section. He agreed with a comment he made in a statement to police that “IT around here…is not particularly responsive, doesn’t always know what it’s doing.” He did not ask Mr. Hume to clarify Mr. Livingston’s statement about using Ms. Miller’s partner, nor do so himself. Mr. Hume was not called as a witness in this trial. Mr.

Wallace convenes a meeting of senior public servants to consider Mr. Livingston’s request January 30 , 2:00 p.m . Mr. Wallace convenes a meeting of senior public servants to discuss Mr. Livingston’s request for administrative access to computers in the OPO. In attendance are Mr. Hume, Mr. Bromm, Ms. Jackson, Associate Secretary of Cabinet Scott Thompson and Mr. Nicholl. Mr. Wallace said that he and the others regarded Mr.

Livingston’s request as “extraordinary”, particularly since it came during a time of transition between Premiers and “after a period of time in which the issues associated with the gas plant disclosure had been front and centre in the Ontario political debate for …over a year.” In his testimony, Mr. Wallace described the previous months as “a deeply sad and very difficult time”, when “an extraordinarily successful premiership was limping to an end and the issues associated with the termination or resignation [of the Premier] did revolve around the gas plants and the decision-making process associated with those.

So this is a period of extraordinary sensitivity around the issue of document disclosure.” Mr. Bromm told the court that record-keeping obligations were of acute concern at this time. Only two years earlier, the federal government had been found in contempt for failing to disclose documents related the Afghan detainee issue, and as result of being found in contempt, a non-confidence motion was brought and the government fell. Mr. Wallace did not wish to grant Mr. Livingston any type of administrative access that was unprecedented. He was “very concerned” about Mr. Livingston’s request and asked Mr.

Nicholl to inquire whether there were “administrative passwords already in the possession of the Office of the Premier”. Mr. Wallace and Ms. Jackson testified that there was no “technical discussion” at the meeting as to the nature of the administrative access that Livingston was requesting. Mr.

Wallace understood only that it would “allow whoever had it to essentially treat their computer as if it were their own computer and that they would be able to install software or otherwise manipulate the information… this would allow somebody to basically have the powers over at least one machine that the corporate IT powers would normally have. In a practical sense, allow somebody to install software or delete things from the computer.” Following the meeting, Mr. Wallace learned from David Nicholl that seven OPO staff already had local administrative rights. What Mr.

Wallace did not know was that those OPO staff members had administrative rights for a very limited purpose – to install a

specific application called “Open Text”, a tracking program used to organize correspondence to the Premier. Mr. Wallace did not know , nor was he ever informed that this administrative right did not allow a user to access multiple computers in the OPO. Only the local IT team had that kind of access. Mr. Nicholl met with Mr. Stenson and Mr. Gitt. Mr. Nicholl told Stenson to “start putting his mind to a potential go-ahead on admin rights.” In his 18 years with POCO IT, this was Mr. Gitt’s first interaction with Mr. Nicholl. He recalled that Mr.

Nicholl put several questions to him before asking, “I don’t need to know how to do this, but if I give you a group of people and a group of computers, could you give admin rights to those people?” Mr. Gitt said the issue seemed “fairly urgent” and that this was not your usual request. He went on to say, “this is a fundamental change in the infrastructure configuration for desktops in the OPS….It’s certainly more complex than a standard request.” He wondered, “why couldn’t they just ask our team to do [it]…we already have that access and are capable of doing it.” There was important information that Mr.

Wallace did not receive before making his decision. This is seen in an e-mail from Thom Stenson to Linda Jackson, dated March 20, 2013. It reads: “At the request of staff and with the approval of their managers, we can provide desktop Admin access for specific accounts to specific desktops.

There are typically two situations that arise where this would be the case: 1) The Correspondence Unit OpenText application requires that staff have Admin access to their particular desktop in order for it to function properly…. 2) The second typical case where desktop Admin rights are assigned, is where staff need to install and configure specialised software on their own desktop….Again this access is restricted to their own desktop and no others”. [37] In similar vein, Mr. Nicholl testified that, “we’re reluctant to give administrative rights because it allows people to bring software onto the desktops.” Mr.

Wallace decided to grant the administrative rights requested by Mr. Livingston. As Mr. Bromm described in his testimony: “there was a discussion [at the January 30 th meeting] about what the Secretary could do: would it be proper to refuse to provide something that it appeared already existed in the [OPO]? The decision made was there was no basis on which the secretary could or should refuse to provide the password because [the OPO] already had people with those administrative rights.” Mr. Wallace testified that when he made his decision, he thought that the password would be given to a staff member of the OPO.

His belief was that the OPO staff would have the ability to access “their own computer and potentially more than one …and they would be able to alter, retain, manipulate and delete the information associated with the hard drive”. He said that did not know or believe that someone from outside the public service would be brought in to access OPO computers. To his knowledge, the OPO had never used an “external resource to alter government of Ontario assets”.

He told the court that because of the considerable sensitivity of OPO documents, such work could only be done by Ontario Public Service members or by contractors procured through established bidding and security protocols. He also said that he was unaware of any prior attempt by an “outsider” to access the hard drive of an OPO staff member. Mr. Wallace said that had he known any of this, he would have never granted Mr. Livingston’s request for administrative rights. 5:39 p.m. Ms. Miller e-mails Mr. Livingston, asking, “Any luck with the code?” Mr. Livingston replies “Not yet.

Steen is on it and as of yesterday, he felt we may get it but somebody from IT may stand and watch what we do to make sure nothing was done to contaminate files or programmes outside of those on the desktops being dealt with. I guess that’s the concern - the fact that having the code get us access to systems other than our own”. January 31 : 10:20 a.m. Mr. Livingston e-mails Ms. Miller: “We have broken through. CO has facilitated and I will be talking to David Nicholl this afternoon about how to actually get the codes and move forward.” Mr.

Wallace testified he did not feel “remotely comfortable” granting the access rights. Because of his discomfort, he instructed his counsel, Mr. Bromm, to create a “background memo” for Mr. Livingston that would set out the obligations of the OPO with respect to records management. Mr. Bromm prepared this memo with the assistance of Don Fawcett, Senior Counsel and Team leader of the Access and Privacy Law Group at the Ministry of Government Services. Mr. Nicholl conveyed the advice contained in the memo to Mr. Livingston in a telephone call on January 31. Mr. Fawcett was with Mr. Nicholl when he spoke to Mr.

Livingston. Mr. Nicholl also included the contents of the memo in an e-mail he sent to Mr. Livingston after the telephone call. In this e-mail Mr. Nicholl cautions Mr. Livingston , as follows: “I understand that at the present time there is an FOI matter related to your office that is currently under appeal. As a result, my recommendation would be to preserve the e-mail accounts and records of any individuals involved in that matter until the appeal process is complete.

This will avoid any allegation that your office improperly deleted records knowing that a matter was under appeal...Similar steps should be taken for any outstanding FOI requests for documents in the Premier’s Office. Your office can work with Jamie Forrest, the Cabinet Office FOI coordinator, to identify the appropriate individuals...[T]here is an outstanding Order of the Legislative Assembly with respect to the production of records related to the closure of the Oakville and Mississauga power plants.

In light of the risk that this matter could be raised in the House in a new Session, steps should be taken to search for and preserve any records related to these matters, and to document those steps in writing, to again avoid any allegation that records were improperly deleted.” Mr.

Nicholl was clear in this e-mail that before taking any steps to erase “any records maintained on [departing Premier’s Office staff’s] computer hard drives”: “[C]are must be taken to ensure compliance with the Archives and Recordkeeping Act and applicable record schedules to preserve business records of the government of Ontario….The Premier’s Office Records

Schedule provides for the destruction of only ‘transitory records’, which are records that have no long term business value. The Premier’s Office Records

Schedule establishes a disposition process of records in the Premier’s Office in the event of a Change of Premier. Under the Schedule, records relating to the administration of the Premier’s office, such as Premier’s Office correspondence files and business planning and budget files are to be transferred to the Archives of Ontario.

Similarly, policy and program files developed in the Premier’s office are also to be transferred to the Archives….However, if you believe that individuals in your office have generated substantive records related to a government of Ontario transaction that will not be maintained through these practices, steps should be taken to print and preserve those files through the Office of the Secretary of the Cabinet prior to deletion.”

A copy of the 1999 Premier’s Office Records

Schedule was appended to the e-mail “for Mr. Livingston’s reference.” Mr. Nicholl signed off on the e-mail with: “I would be happy to discuss or assist with any of these issues”. Mr. Nichol did not tell Mr. Livingston that his department had its own wiping tool, nor that they had a process for reformatting computer hard drives. He explained under cross-examination that the “happy to assist” was meant to be all-encompassing, that is, “if he needed technical help, it was there.” Mr. Bromm explained that the memo was designed to remind Mr.

Livingston of three points: 1) a reminder about the government’s record-keeping obligations generally in accordance with the Archives and Record Keeping Act , and specifically, that business records of the government will be maintained even during a transition; 2) to make sure that any records relevant to an FOI request are properly maintained before any other records are deleted; and 3) to inform Mr. Livingston that there was not only an outstanding order to produce records, but that when a new session of Parliament began, a member of the opposition would likely revive the issue. Put simply, Mr.

Bromm’s message was: “keep certain records before you make any decisions about deleting others.” Mr. Nicholl testified that at the conclusion of the telephone call, Mr. Livingston told him that “he would pass it over to his admin area to take care of it…moved on pretty quickly to Wendy Wai and that she would deal with this”. Later that day, Mr. Nicholl instructs Mr. Gitt and Mr. Stenson from POCO IT to provide administrative rights to Ms. Wai. Using her username and password, she would be able to access all of the computers in the OPO.

As Thom Stenson explained in an e-mail to Linda Jackson and Terri Lang on March 20, 2013, “The Admin Rights assigned to Wendy applied to all [OPO] desktops. Essentially, if Wendy logged onto any desktop, she would have full rights to look at and change any data or software stored on the local C: drive. This type of Admin access is normally restricted to specific IT accounts which are used to configure and maintain desktops”. [38] Mr. Gitt testified that he had never before heard of this kind of request. As well, he was surprised to learn that Ms. Wai was the individual selected to have these rights. He knew Ms.

Wai, and was of the view that “she was not comfortable with computers and was very quick to call us”. With these administrative rights, Ms. Wai would have access to some 80-90 computers in the OPO. In his 27 years of public service, Mr. Stenson had never seen anyone, apart from IT personnel, provided with this kind of administrative access. He commented that, “from a security standpoint, it breaks the protocol of not allowing clients to be able to access other people’s data on computers…that’s not the way network security works”. He believed that Ms. Wai did not possess “even modest technical knowledge”.

FEBRUARY 2013 February 1: Mr. Livingston e-mails Ms. Wai, copying Ms. Miller and Dave Gene. He asks Ms. Wai to be the “point of contact” for the setup of administrative access to desktops in the OPO. He instructs her to telephone Mr. Nicholl to obtain the administrative access and then work with Mr. Faist so that “[Mr. Faist] can perform the work requested of him”. As well, Mr. Livingston explains that she may have to stay with Mr. Faist while he does his work. Ms. Wai then e-mails Ms. Miller to tell her she will be speaking with Mr. Nicholl on Monday February 4, 2013. [39] Minutes later, Mr. Livingston and Ms.

Miller have an e-mail exchange in which the two decide upon a list of individuals in the OPO whose computers should be wiped. Mr. Livingston asks Ms. Miller : “And he is wiping files for you, me, DG [Dave Gene, OPO Deputy Chief of Staff, Operations], DP [Dave Phillips], DR [Debra Roberts, OPO Deputy Chief of Staff, Public Appointments and Human Resources] and JB [John Brodhead, Deputy chief of Staff, Policy and Cabinet Affairs]”? Ms.

Miller replies: “WM [Wendy McCann, OPO Executive Director, Communications], LK [Leon Korbee, Executive Director, Strategy and Marketing], Regional Staff, NB [Neala Barton, Director of Media Relations and Issues Management]”. [40] “Pete’s Project” In some of her e-mails during the period of January 24-30, Ms. Miller used the subject line “Pete’s Project” to refer to the plan of using Mr. Faist to erase data from the hard drives of computers in the OPO. February 4: Mr. Faist e-mails Ms. Wai to see when he can start the job. Ms.

Wai replies that the Cabinet Office IT is setting up “access rights” for her and that she would notify him. Later that day, Ms. Wai e-mails Mr. Faist to say that, “everything is set up and ready to go. I just need to log in as myself at each desktop and you should be able to do your part. They have asked me if I needed any assistance which I have gracefully declined”. Mr. Faist then advises her that he can start the next day. She replies that she will make arrangements for him to pass through building security. [41] Wendy McCann, Executive Director, Communications e-mails Ms. Miller , copying Mr.

Livingston : “Is Pete or someone else wiping our computer hard drives”? Ms. Miller replies: “Not all comms (communications) staff however. Just you, Neala, and Leon”. [42] February 5 : Mr. Faist begins cleaning the hard drives of OPO computers. When he begins, the software is not working as intended. He e-mails Ms. Miller with the subject line , “things aren’t going well”. Ms. Miller replies, “uh oh”. She asks, “Can you wipe and reinstall O/S (operating system) [with] the admin [password]”? [43] February 6-7: Mr. Faist continued to wipe the hard drives of the selected OPO computers on February 6 and 7.

He is assisted by Ms. Wai and Ms. Alexandra Gair, Ms. Miller’s assistant. He wiped hard drives at the two OPO locations, the 6 th floor of the Whitney Block and the 2 nd floor of the Legislative Building. Mr. Faist testified that Ms. Gair had a “yellow sticky note” with a list of the user names of computers selected for wiping. Ms. Gair or Ms. Wai would guide Mr. Faist to those computers. Ms. Gair asked Mr. Faist what they should tell the users about why they were there. Mr. Faist testified that, “I told her that we should tell everybody what we were doing”.

He did not know whether the OPO computer users knew beforehand why he was there or what he was doing.

Mr. Faist instructed Ms. Gair how to use the wiping software. On February 7, she worked on some of the hard drives by herself. Mr. Faist said that it took approximately three hours for the software to run its course on each computer. He testified that most of

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