TORONTO — The prosecution’s proposed personal computer professional in the gasoline vegetation trial believed a single of the two people today accused in the scenario “had to shield his name and that of the (Ontario Liberal) bash.”
The revelation came Tuesday at Ontario Court docket as attorneys argued about whether the proposed witness, a retired Ontario Provincial Police officer, was so close to the investigation that he fatally compromised his independence as an professional.
Prosecutors say he did not, and urged Choose Timothy Lipson to 1st listen to previous OPP detective-sergeant Robert Gagnon’s testimony and then identify if he’s a neutral and reasonable witness or not.
But defence attorneys say Gagnon was also enmeshed in the probe, named Job Hampden, and also caught up in its collective mentality, to now be able to divorce himself from the group and testify independently — or even to qualify as an professional.
As attorney Scott Hutchison set it as soon as, “For two and a half several years, (Gagnon) wore the Job Hampden sweater.”
For him now to be set forth as an impartial professional, Hutchison mentioned, is akin to expecting a 30-year veteran of the Montreal Canadiens to abruptly set on a striped jersey and relatively “referee a game among Montreal and the Leafs.”
In an e mail despatched to OPP investigators on Feb. 22, 2015, Gagnon proposed new charges be regarded as towards David Livingston and Laura Miller.
(As it turned out, detectives were already thinking about individuals charges.)
The two were respectively then Ontario Premier Dalton McGuinty’s chief of staff members and deputy chief of staff members at the time that two gasoline vegetation in Oakville and Mississauga were cancelled and relocated at monumental community expenditure.
Gagnon appeared to be suggesting a motive for why Livingston may have preferred emails and files relating to the cancelled vegetation to vanish.
“Livingston was leaving community services,” Gagnon advised the Job Hampden group, “but had to shield his name and that of the bash for any upcoming employment in other places and the get-togethers (stet) upcoming election.”
If such a see was almost certainly as popular as mother’s milk at Queen’s Park at the time, and maybe even between a cynical electorate, it is a problematic statement from an professional at a time when professional witnesses are remaining held to at any time-better benchmarks by Canadian courts.
As Hutchison advised the choose Monday of the e mail, “For two and a half several years, that was (Gagnon’s) mentality, and that is not the way an independent and impartial professional witness will come to court.”
Gagnon spent most of his 30-year occupation with the OPP as its technical or e-criminal offense professional. He retired in 2009, but was brought again as a expert in Might of 2014 when the power began investigating the destruction of emails and files relating to the cancellation of the two vegetation.
By then, previous privacy commissioner Ann Cavoukian had finished an investigation of her own, and concluded that at the the very least staff members in McGuinty’s office environment had a “culture of preventing the generation of prepared documentation” about the gasoline vegetation. She stopped quick of indicating with certainty that the previous premier’s staff members had improperly deleted emails, but mentioned “it strains credulity that no a single realized that the observe of deleting all emails” was poor.
Prosecutor Tom Lemon advised the choose that Gagnon’s statement about Livingston was “not best as it seems in that email” and that it was for the choose to make a decision if it was a bridge also far.
But primarily, Lemon mentioned, Gagnon was involved in the investigation only as a technical adviser, and his only interactions with detectives was “related to his technical capabilities.”
He mentioned the remedy is for the choose to “hear the evidence” and then make a decision if he will make it possible for Gagnon to give “all or some” of his interpretation of what the missing details implies.
Continuing that way — with the choose hearing Gagnon’s testimony and then assessing and ruling on it — will cause “no prejudice to the accused.”
But Hutchison mentioned the legislation on professional witnesses has so improved in new several years that it would be “an error in law” for the choose to handle it that way.
In the spring of 2015, the Supreme Court docket of Canada dominated that professional witnesses normally ought to be impartial and independent. An Ontario Court docket of Enchantment decision in 2017 dealt exclusively with police experts and identified they are not able to have on two hats — are not able to be each investigator and professional, in other text.
But by the time the Supreme Court docket decision was unveiled, Gagnon had been on the task for just about a year, and by the time the second decision emerged, the get-togethers were preparing for trial.
People selections, and the variations they impose, suggest yet another sort of procedural unfairness may perhaps be at perform — that police who operate investigations in excellent faith (and employ the service of experts in excellent faith) can be retroactively judged and identified seeking by exacting new benchmarks the courts impose.
The trial is on maintain pending the judge’s decision Thursday.
• E-mail: [email protected] | Twitter: blatchkiki