A judge in the trial of two top advisers to former Ontario premier Dalton McGuinty has ruled a key prosecution witness won’t be allowed to deliver opinion evidence in court because he’s not independent.
It’s a blow to the Crown’s case against McGuinty’s former chief of staff, David Livingston, and his deputy, Laura Miller. They’re both charged with breach of trust and mischief for allegedly destroying government documents and computer files about the billion-dollar cancellation of two gas-fired power plants.
The witness, Robert Gagnon, was a computer forensic specialist with the OPP for more than 20 years. He came out of retirement to work with the OPP on the gas plants case.
The defence argued that he was too deeply involved in the investigation to be an impartial expert witness, and Justice Timothy Lipson agreed.
Expert witnesses are permitted to testify about their opinion of what evidence means — something other witnesses cannot do. Supreme Court of Canada rulings indicate that expert witnesses must be “impartial, independent and unbiased.”
“Mr Gagnon’s original limited role … morphed into something much more as the police investigation proceeded,” Lipson said in his ruling.
The judge chastised the OPP for compromising Gagnon’s independence by failing to take steps to keep him away from the management of the investigation.
“He provided investigators with strategic and legal advice,” Lipson said.
The judge said the “most concerning example of partisanship” was an email Gagnon sent recommending charges of mischief in relation to data. Lipson said the email “demonstrated his lack of independence and impartiality.”