Judge to rule if key ‘expert’ Crown witness can testify at gas-plants trial

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.

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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.

At one point, court heard, Gagnon emailed the group that Livingston had been trying to protect the Liberal party as well as his own career prospects by deleting sensitive emails. Gagnon proposed laying a mischief charge — one of three the accused now face.

“He believes he is Ground Zero for this charge,” Hutchison said. “He can’t (now) suddenly take off the partisan sweater and sit in the witness box like a referee.”

Prosecutor Tom Lemon struggled to defend the witness on whom much of the case hinges. His proposed evidence, Lemon said, is largely “factual” and would be subject to cross-examination if he is allowed to testify.

But a skeptical Lipson pressed the prosecutor as to whether another expert could offer a different opinion of the same evidence.

“Truthfully, I don’t know,” Lemon responded after a long pause.

“So, it could be subject to a different opinion from another expert?” Lipson said.

“I don’t know for certain,” Lemon replied.

Lipson recessed for 10 minutes to give Lemon a chance to come up with something more definitive on whether another expert could disagree with Gagnon’s conclusions.

“It’s a difficult question to answer. I’d have to speculate,” Lemon said after Lipson returned. “I can’t say it’s impossible.”

Lemon argued against defence criticism that Gagnon had worked partly for free on the case, saying he was simply taking his professional responsibility seriously.

“It’s not something that should be held against him,” Lemon said. “The fact that he goes a little further doesn’t lead to any sinister inference.”

Lipson said he wanted to pause the trial to rule whether Gagnon, supposed to be the opening witness, can testify. He said he would do so on Thursday.

“The complexity of this application is such that I think it’s important that I make a decision,” Lipson said. 

Livingston, McGuinty’s chief of staff, and Miller, his deputy, have pleaded not guilty to breach of trust, mischief and illegal use of a computer in the deletion of thousands of files in the premier’s office related to the decision to cancel the gas plants.

Colin Perkel, The Canadian Press