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Gas-plants judge disqualifies key Crown 'expert' witness as non-independent

TORONTO — The case against two former top political aides in Ontario accused of illegally destroying emails in the premier's office took a serious blow Thursday when the judge ruled a key prosecution witness could not testify as an expert.
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TORONTO — The case against two former top political aides in Ontario accused of illegally destroying emails in the premier's office took a serious blow Thursday when the judge ruled a key prosecution witness could not testify as an expert.

The witness, a former provincial police officer, was simply too close to investigators and the investigation known as Project Hampden to offer impartial evidence as legally required, Ontario court Judge Timothy Lipson ruled.

Lipson noted Robert (Bob) Gagnon, a retired police computer specialist, was integrally involved in investigating and prosecuting David Livingston and Laura Miller, even at one point suggesting one of the three charges laid against them. The pair has pleaded not guilty.

"There really was no separation between Mr. Gagnon and the Project Hampden investigators," Lipson said. "Over time, he became an important member of the Project Hampden team."

The prosecution had wanted Gagnon to testify as an expert witness against Livingston and Miller, chief of staff and deputy to former Liberal premier Dalton McGuinty. As an expert, he could have offered his opinion on the evidence.

But the defence said he didn't meet the test of independence, impartiality and freedom from bias. It cited his extensive involvement in the probe virtually from the start, when investigators set him up with a separate computer forensics laboratory at provincial police headquarters.

The separate facility, Lipson said, was an appropriate step, but turned out to be the "only one." His involvement "expanded rapidly over time" to the point where he became an important resource for the investigative team, the judge said. 

Lipson noted the law on expert evidence has seen a "dramatic evolution" since a Supreme Court of Canada ruling in 2015. The courts, he said, have come to recognize the potential for "egregious miscarriages of justice" based on faulty expert witness testimony.

In particular, the judge said, expert police witnesses attract heightened concern about their independence, and Gagnon, although officially retired since 2009, was essentially acting as a police officer during the investigation.

While he said he had no doubt about Gagnon's sincerity or good intentions, his long, ongoing involvement — taking part in case conferences and providing legal and strategic advice — simply raised too many concerns about his impartiality.

Following his ruling, Lipson called a break to allow the two sides time to consider next steps. It was not immediately clear how the Crown would proceed without Gagnon, who was to be the first witness in the long-delayed trial.

The prosecution said it was too soon to consider consequences of the ruling but planned to start with another witness Thursday afternoon.

The chief of staff to McGuinty and his deputy were accused of destroying emails related to the politically explosive cancellation of two gas plants before the 2011 provincial election. Livingston and Miller had pleaded not guilty to three charges: breach of trust, unlawful use of a computer, and mischief.



Colin Perkel, The Canadian Press



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