Defence attacks bias of expert Crown witness at gas plants trial

Former police officer attacked over his role in the probe of destroyed e-mails in the premier's office.

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 Sept. 25.

In seeking to have Robert (Bob) Gagnon disqualified as a witness, lawyer Scott Hutchison relentlessly attacked the role the former police officer played in the probe of the destruction of documents in the 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.”

From the get-go, Hutchinson said, Gagnon was an intimate member of the team that investigated, and prosecuted, David Livingston and Laura Miller.

The duo – top aides to former Liberal premier Dalton McGuinty _ are charged with illegally destroying documents related to the politically explosive issue of the government’s cancellation of two gas plants 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, brought out of retirement to work on the investigation, instead assumed an advocacy role from the get-go.

Gagnon was hired for his expertise in computer forensics, a skill widely available elsewhere, but came to see himself as an active member of the investigative team, which included several of his former colleagues, Hutchison said.

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.

“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.”

While Gagnon is a person of integrity, Hutchison said, the former detective-sergeant was in the “thick of it” as a team member who among other things uncovered deleted emails from the mailboxes of the accused.

At one point, for example, Gagnon told the others that Livingston had been trying to protect the Liberal party and his own career prospects by deleting the sensitive emails, court heard.

“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.

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.”

Lipson said he might want to pause the trial for a day or two to rule first whether Gagnon, supposed to be the opening witness, can testify.

“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.

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