Former Dalton McGuinty chief of staff David Livingston has been sentenced to four months in jail for his role in wiping government computer records related to the controversial cancellation of two gas plants.
"An attempt to tamper with the democratic process demands a strong denunciatory response,” said Justice Timothy Lipson in a downtown Toronto courtroom, adding that Livingston's attempt to interfere with the parliamentary process was the worst part of his offence.
"His conduct was an affront to and an attack upon democratic institutions and values," he added, going on to cite the Michael Sona robocalls case and Dean Del Mastro electoral expense case as precedents to guide sentencing in the case.
"Mr. Livingston will be sentenced to imprisonment for four months," he said after reading his ruling for 48 minutes.
The judge stressed that Livingston's actions were an attempt to undermine the tools used to hold the political process to account. "This offence is very serious because it involves an attempt by the defendant to thwart the core values of accountability and transparency that are essential to the proper functioning of parliamentary democracy."
Livingston was also sentenced to one year of probation and 100 hours of community service.
After the judge read his sentence and court was adjourned, Livingston, who was once the premier's right-hand man, was marched out of the courtroom in handcuffs.
Immediately following the sentencing hearing, Livingston attorney Brian Gover said he would appeal the sentence on behalf of his client and seek bail. Gover added that he didn't anticipate Livingston, who was in a court holding cell at the time, would spend the night in jail.
The lawyer told the media following the sentencing hearing that given Livingston's age – he's 65 – lack of a prior criminal record and testaments to his "exceptional" good character, he considered the sentence "harsh and excessive," adding that there was "no proof of actual harm."
But Lipson considered these arguments in his sentencing, and argued that the harm was undermining trust in democracy, and imprisonment was necessary in part to act as a deterrent for other political actors who might do the same.
Lipson also rejected the argument that Livingston, who had been chief of staff for nine months, was a political neophyte who didn't understand the rules and procedures of the government world he found himself in. "The evidence in this trial, particularly the e-mail trail, establishes that Mr. Livingston was a politically sophisticated government actor who committed this offence because of political expediency, rather than fulfilling his responsibility to conduct himself within the law."
Livingston was found guilty in January of one count of unauthorized use of a computer for facilitating the "indiscriminate" wiping of 20 government computers during the transition period between the McGuinty and Kathleen Wynne governments. Former deputy chief of staff Laura Miller, who was tried at the same time, was found not guilty.
The Crown had asked for six to nine months in jail while the defence had requested a conditional discharge.
But Lipson felt that a conditional discharge was disproportionate to the severity of the offence. "A conditional discharge, as proposed by counsel for the defendant, would be entirely disproportionate to the seriousness of Mr. Livingston’s criminal conduct and his high degree of responsibility. Such a sentence would be utterly contrary to the public interest," he said in court. The judge also used his discretion to assess a sentence that a sentence of six to nine months was too much, and gave some weight to the many testimonials to his good character the former investment banker received.
The sentencing occurred less than one month before the writ drops for the June 7 election campaign, but the opposition parties declined to say that it would help them politically. Instead, they focused on what it says about the government.
"No sentence is going to bring back the $1 billion that was wasted on the gas plants scandal, but it is a sad day for Ontario," said PC finance critic Vic Fedeli.
"We sat through years of the gas plant scandal hearings, knowing that we weren't getting the full truth for the people of Ontario. We just knew that there were files missing. And the smugness, and the arrogance of the Liberal operatives who sat in front of us – they knew that they deleted the files," said Fedeli, who called the "known deception" the worst part of the offence.
"They usurped democracy," the PC MPP added.
"I'm not really surprised," said NDP energy critic Peter Tabuns. "This is a government that continues to be arrogant, entitled, and from time to time there are consequences to that."
Attorney General Yasir Naqvi declined to comment on the particulars of the case, as the pending appeal means the matter is still before the courts. "Premier Wynne and the government very strongly believes in transparency and accountability," adding that they have already put into place "strict rules" around document retention in response to the scandal.