Court File and Parties

Ontario Court of Justice

Between:

Her Majesty the Queen

T. Lemon, S. Egan and I. Bell for the Crown

— And —

David Livingston and Laura Miller

B. Gover, F. Schumann and P. Hrick for David Livingston S. Hutchison, M. Borooah and G. Edelson for Laura Miller

Ruling on Motion for Directed Verdict

Justice Timothy R. Lipson

Introduction

[1] The applicants, David Livingston and Laura Miller, pleaded not guilty to charges of breach of trust by a public official, mischief to data and unauthorized use of a computer.

[2] At the close of its case, Crown counsel advised the court that it would not pursue the breach of trust count. In its view, there was no reasonable prospect of conviction. That count was dismissed.

[3] The applicants seek a directed verdict of acquittal on the remaining two counts in the information.

[4] Those counts are as follows:

Count 2: Mischief to Data

David Livingston and Laura Miller did, between the 24th day of January 2013 and 20th day of March 2013, in Toronto, wilfully commit mischief in relation to data, by deleting data from the computers of the Office of the Premier of Ontario, thereby committing an indictable offence contrary to section 430(5)(a) of the Criminal Code.

Count 3: Unauthorized Use of a Computer

David Livingston and Laura Miller did, between the 24th day of January 2013 and the 20th day of March 2013, in Toronto, fraudulently and without colour of right, use or cause to be used, directly or indirectly, a computer system with intent to commit the offence of mischief in relation to data under section 430(5), thereby committing an indictable offence contrary to section 342.1 of the Criminal Code.

Test for Directed Verdict

[5] In making this application, the defendants say that the prosecution has failed to make out even a prima facie case against them, and that they should therefore be acquitted without having to decide whether to call evidence.

[6] A directed verdict, or non-suit, will only be granted if the Crown fails to call some evidence on each element of the offence. The court is required to consider all of the evidence including any reasonable inferences that flow from it. The court is required to take the Crown's case at its highest. This is, of course, a far different analysis than that of a trier of fact at the completion of the trial. There the issue is whether the Crown has proven its case against each defendant beyond a reasonable doubt.

[7] At this stage, it is not the court's function to weigh the evidence nor to test its quality or reliability. A directed verdict is not available where the Crown's evidence is merely weak. A directed verdict is possible only where there is a complete absence of evidence on some point that must be proven. The existence of evidence on every essential element will result in the dismissal of a directed verdict motion. The Crown must lead some evidence, direct or circumstantial, on each element of the offence. The issue on a non-suit application is not whether that evidence is persuasive.

[8] To the extent that there is circumstantial evidence in this case, I must weigh the evidence in the limited manner described by Chief Justice McLaughlin in R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.). I am required to determine whether on the whole of the evidence, including any defence evidence, the evidence is capable of reasonably supporting the inferences sought by the Crown. Where more than one inference can be drawn from the evidence, the court is not to weigh competing inferences, and only the inferences that favour the Crown are to be considered on this application, even in the face of exculpatory evidence. A judge falls into jurisdictional error where he or she prefers an inference favourable to the accused over one favourable to the Crown, or by failing to consider the whole of the evidence.

[9] In some circumstantial evidence cases, there may exist not one, but a whole range of reasonable inferences which may be drawn. However, the ultimate determination as to whether an available reasonable inference ought to be drawn is for the trier of fact. At this stage of the trial, a judge is not to ask whether facts ought to be inferred and is not to make "determinate factual inferences." Nor should the judge apply the rule in Hodge's Case to determine whether a reasonable inference is consistent with guilt and inconsistent with any other rational explanation – that is a test for the trier of fact to decide at the end of the trial. Rather, the trial judge should conduct a limited weighing of the evidence to determine whether, based on common sense, human experience and logic, an inference could reasonably be drawn by a trier of fact from a primary fact or group of facts across an inferential gap to a further fact materially supporting guilt.

[10] The test on this application is whether there is evidence upon which a properly instructed jury could, not would, rationally conclude that the accused is guilty beyond a reasonable doubt.

[11] I wish to be clear that at this stage of the trial, I am not entitled to make findings of fact nor to engage in an assessment of the evidence with a view to determining the guilt or innocence of the defendants. The following analysis is an exercise in identifying only whether there is any evidence upon which a jury could find guilt.

Count 2: Mischief to Data

Offence Provisions in the Criminal Code

430(1.1) Every one commits mischief who wilfully

(a) destroys or alters data;

(b) renders data meaningless, useless or ineffective;

(c) obstructs, interrupts or interferes with the lawful use of data; or

(d) obstructs, interrupts or interferes with any person in the lawful use of data or denies access to data to any person who is entitled to access thereto

(5) Every one who commits mischief in relation to data

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or

(b) is guilty of an offence punishable on summary conviction

(8) In this section, data has the same meaning as in section 342.1

R.S., 1985, c. C-46, s. 430; R.S., 1985, c. 27 (1st Supp.), s. 57; 1994, c. 44, s. 28; 2001, c. 41, s. 12; 2005, c. 40, s. 3 (Version of section 430 from 2005-11-25 to 2014-06-18)

Elements of the Offence

[12] For the purpose of this application, the Crown is required to show that there is some evidence that the defendants wilfully destroyed computer data. Data is defined in s. 342.1(2) of the Criminal Code. There is no dispute that data would include e-mails, documents in an e-mail, word documents, documents on a computer and text messages.

[13] The Crown is also required to lead some evidence that the defendants wilfully committed the act. The term "wilfully" as it relates to committing mischief to data is defined at s. 429(1) of the Code:

Everyone who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed for the purpose of this Part, wilfully to have caused the occurrence of the event.

[14] Put simply, the Crown must lead some evidence that the accused committed the act under section 430(1.1) while with knowledge or recklessness in relation to the consequences that data would be destroyed.

[15] Section 429(2), qualifies s. 429(1) by stating that:

No person shall be convicted of an offence under sections 430 to 446 where he proves that he acted with legal justification or excuse and with colour of right.

The "and" between excuse and colour of right should be read as an "or": R. v. Creaghan (1982), 1 C.C.C. (3d) 449 (Ont. C.A.)

[16] Here, the Crown must lead some evidence that the destruction of data in question was done by the defendants without legal justification or excuse or colour of right. In other words, there must be some evidence upon which a jury could conclude that the defendants did not have actual permission or authority to do the act in question and that they had no colour of right to do that act. Colour of right refers to a defendant's honest belief, even if mistaken or unreasonable, that he or she was legally permitted or authorized to do the act in question.

Overview of the Evidence

[17] There is evidence that a decision by the government of Ontario to cancel and relocate the Oakville and Mississauga gas plants dominated political discussion at Queen's Park in the summer and fall of 2012 and early winter of 2013. During this period Mr. Livingston was Chief of Staff to the Premier and Ms. Miller was Deputy Chief of Staff, Communications and Strategy.

[18] On May 16, 2012 the Standing Committee on Estimates ordered the Minister of Energy, the Ministry of Energy and the Ontario Power Authority to produce all correspondence and records related to the gas plant decision. On June 5, 2012 the Opposition tabled a motion to hold the Minister of Energy in contempt for non-compliance with the committees' standing order. There were also Gas Plant Freedom of Information (FOI) requests directed at the Cabinet Office and Office of the Premier (POCO) in the fall of 2012 and January 2013.

[19] According to Peter Wallace, the Secretary of Cabinet, the issue of retention of gas plant related documents was a "dominant issue" and "central focus of discussion" in POCO. Secretary Wallace said that this was a period of considerable tension and he was extremely concerned that records relating to government business records at the Office of the Premier with respect to gas plant related issues would not be retained.

[20] There are numerous e-mails which Mr. Livingston and Ms. Miller sent, received or were copied on regarding issues relating to the gas plant issues. Those e-mails are found in two volumes, filed as Exhibit 22. The e-mails span a period from early July 2012 to February 7, 2013. Many of them concern a number of issues relating to the decision by Premier McGuinty's government to cancel and relocate the two gas plants. Some e-mails concern Freedom of Information (FOI) requests for correspondence from the Office of the Premier (OOTP) relating to that decision. Some e-mails relate to communication strategies by the OOTP regarding Legislative committee Standing Orders for the production of gas plant related documents. There are some e-mails which concern potential government options to address a point of privilege raised in the Legislature seeking to hold the Minister of Energy in contempt of the Legislature for non-compliance with a Production Order. One example found at Exhibit 22, Tab 88, is a memorandum from the Government House Leader to Mr. Livingston where Ms. Miller is copied. The subject of that document is "Legal Options re Opposition Tactics Relating to Relocation of Oakville and Mississauga Gas Plants".

[21] There are also e-mails sent or received by the defendants about "double deleting" e-mails from their computers and those of staff in the OOTP. The defendants discussed obtaining the necessary administrative rights to be able to wipe the hard drives of their own computers and those of selected staff in the OOTP. Several of those selected individuals had received FOI requests for their correspondence concerning the gas plant issues. There are e-mail exchanges between the defendants about using Peter Faist, Ms. Miller's life partner, to perform the task of wiping the hard drives in the OOTP which, in fact, he did the first week of February, just a few days prior to the commencement of Premier Wynne's administration.

[22] A jury would be entitled to conclude that some of the e-mails authored or received by the defendants found in Exhibit 22 were documents of long term business value which should have been retained for the purpose of responding to FOI requests and/or standing committee production orders.

[23] There is evidence from the e-mails in Exhibit 22 that both defendants were aware that there was a FOI request as well as an outstanding appeal of an FOI request at the time the hard drives were wiped, and that they had responded they had no records in relation to FOI requests dated October 10, 2012, November 22, 2012 and January 15, 2013 (Exhibit 22, Tabs 70, 71, 85, 86, 91, 99, 102, 105, 106). Mr. Faist conducted the wiping of the OOTP computers shortly after the defendants reported they had no documents in reply to the January FOI request.

[24] There is evidence that Mr. Livingston and Ms. Miller enlisted Ms. Miller's partner, Peter Faist, to destroy data on the hard drives of computers used by certain staff in the OOTP, as well as their own.

[25] On January 24, 2013, Mr. Faist attempted to install White Canyon "Systemsaver" software on Ms. Miller's computer. The program did not work because Ms. Miller lacked the kind of administrative access that would permit the application of this software. There is evidence that David Livingston sought, and by January 31, 2013 obtained, the necessary administrative right of access from Secretary of Cabinet Wallace.

[26] On or about February 5, 2013 Mr. Faist began the process of wiping the hard drives of selected computers in the OOTP. By February 8, White Canyon software was installed and run to completion on 20 of 24 computers seized by the police, including those of the two defendants. There is evidence that Peter Faist, at times with the assistance of an OOTP staff member, installed and ran the wiping software on those computers. Mr. Faist said the wiping was indiscriminate and without regard to content.

[27] There is an admission that on computers where White Canyon System Saver is installed and run to completion, the program permanently deletes any files in any user profiles that are selected for deletion in the process of running the program (Exhibit 31). There is a further admission that "of the 632,000 files deleted on these computers, a total of no more than 400 were user created files. User-created files are files knowingly saved to the hard drive by a computer user" (Exhibit 31).

Is There Evidence That Data Was Destroyed That Should Have Been Retained?

[28] The Crown's theory as set out in its written argument is that "the wiping of the hard drives was part of a larger attempt to ensure that there were no recoverable records that would demonstrate that the accused, and others, did have FOI–responsive records that they claimed not to have, and to ensure that no documents remained for any future orders for production of documents by a Legislative Committee." In oral submissions it was also argued that the defendants had no authority to wipe any data, work-related or personal, from the hard drives of employees in the OOTP.

[29] The Crown submits that relevant and retainable gas plant records, including e-mails, memos and other documents, were wiped off the hard drives by Mr. Faist.

[30] Cabinet Office legal counsel, William Bromm, testified that the Freedom of Information ("FOI") scheme established by the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, requires that before an FOI request is received, "business records" as defined under the Premier's Office Records Schedule established under the Archives and Record Keeping Act, 2006, S.O. 2006, c. 34, Sched. A, must be retained. Accordingly, public servants are entitled to delete transitory records until a request is received, at which point they have to search everything that they have. Further, there was evidence that business records that would be retained elsewhere in government did not need to be retained by the OOTP (Exhibit 15, Tab G).

[31] There was some general evidence about the Microsoft operating system in use at the time. Rolf Gitt was then a technical team leader in the Information Technology (IT) unit responsible for POCO. Mr. Gitt said that the "original" or primary version of e-mails resided on the servers, not on hard drives. He said some user-created files were saved on the "C" (or hard) drive and that e-mail attachments could be inadvertently saved on the hard drives. Personal Storage Tables or "PST" folders containing e-mails were also sometimes saved on the "C" drive. Another form of e-mail archive file called an "OST" file, was automatically created by the Microsoft Outlook software on POCO computers. The OST file was designed to be a local copy of a user's e-mail account, in order to reduce the need for data to be transmitted over the network. The OST file resided on the hard drive but if it was deleted or if a new computer was used to access the same e-mail account, the server copy of the e-mails would not be affected and the system would automatically create a new OST file and start duplicating the account again. It is uncontested that e-mails primarily resided on, and were backed up to, e-mail servers, not hard drives. Mr. Gitt was unable to say what files existed on the hard drives that were wiped by Mr. Faist.

[32] There is an absence of evidence that the records, including e-mails and documents that are relevant to the prosecution case, existed on the computer hard drives which Mr. Faist wiped. There is no evidence that such data was in fact destroyed. The Crown did not lead admissible forensic expert opinion evidence on what, if any, data was destroyed by the wiping of the hard drives. No witness said that data, whether in relation to the gas plant related issues or anything else, had been wiped from his or her computer's hard drive as a result of the wiping. Rebecca Mackenzie, an OOTP staff member whose hard drive was cleaned, testified that her e-mail was unaffected. Another staff member, Alexandra Gair, was unable to say what files she stored on her hard drive. Nor did Mr. Faist provide such evidence, since his task was to simply wipe the hard drives without regard to content.

[33] In my view, it would be speculative to conclude that data relevant to the prosecution case was destroyed. To draw an inference that the deleted files did, in fact, contain business or work-related material would, at best, amount to an educated guess and that is impermissible.

[34] What remains then is evidence that the defendants attempted to commit mischief to data.

Is There Evidence That the Defendants Attempted to Destroy Data Wilfully and Without Colour of Right?

[35] The element of the offence that is at issue in this motion is whether the defendants destroyed computer data without legal justification, excuse or colour of right. There is some evidence that the defendants attempted to destroy data wilfully and without legal justification, excuse or colour of right.

1) A Jury Could Infer That It Was Reasonably Foreseeable to the Defendants That There Were Retainable Records on the Hard Drives

[36] Mr. Wallace testified that in August 2012, he asked his legal counsel, Mr. Bromm, to prepare three memoranda for a briefing with Mr. Livingston. The focus at the time was the production obligations of the Minister of Energy to the Standing Committee on Estimates. The Minister had provided only partial disclosure of documents related to the Mississauga Gas Plant to the Standing Committee on Estimates. The Minister had declined to produce solicitor-client-privileged documentation and had further requested that the Committee respect the privilege, confidentiality and commercial sensitivity of all Oakville records due to ongoing negotiations. On June 5, 2012, the Opposition tabled a motion to hold Minister Bentley in contempt. In light of this, Mr. Wallace had a conversation with Mr. Livingston about the powers of the Standing Committee to require disclosure and on records management generally. Mr. Wallace testified that he gave "the gist" of the memos prepared by Mr. Bromm on record keeping requirements to Mr. Livingston. In response, Mr. Livingston commented, "that's political bullshit."

[37] Mr. Wallace told the court that he also had a separate discussion with Mr. Livingston in August 2012, after being approached by him. Mr. Wallace testified "[Mr. Livingston] wanted to understand that if an e-mail were deleted…was there a way of ensuring that that e-mail was not captured in an archival type of process. He understood that e-mails, when initially deleted, may not actually disappear from the system, but may default to a trash box or some other holding pattern or mechanism within the software program and that that might become backed up because the government of Ontario, in conjunction with all other large organizations produces periodic backup tapes for continuity purposes…essentially what he wanted to know is how to ensure the documents deleted were not inadvertently captured by the backup tapes."

[38] David Nicholl, Corporate Chief Information Officer of Ontario, had a meeting with Mr. Livingston and others in August 2012. Mr. Livingston expressed concern that people who had left the OOTP in the past had found that their e-mail accounts were still open when they returned to work in the OOTP some time later. Mr. Livingston also asked Mr. Nicholl about how e-mails are deleted. Mr. Nicholl described to him the protocols for decommissioning e-mail accounts of departing staffers. He told Mr. Livingston about the mechanics of e-mail deletion, in particular, the two steps required to properly delete e-mails and the way the backup tape system worked.

[39] On August 9, 2012, Mr. Livingston sent an e-mail to his deputy chiefs of staff, including Ms. Miller, about "double deleting" their e-mails and specifically related the "double delete" instruction to the FOI process. Mr. Livingston wrote:

"Premier's office e-mails are backed up for 2 weeks in case of a systems breakdown and there is a need to recover essential data. What this means to the double deletes is that if the double delete does not happen the day an e-mail is received, then a copy of that e-mail will be in the backup for two weeks notwithstanding it is now permanently gone from the system. However backups are not part of the system that is accessed for FOI purposes so they have never been used to satisfy an FOI request. As such, I don't think we need to worry about this back up process."

[40] After the administrative rights had been granted to Mr. Livingston, Mr. Wallace, who did not feel "remotely comfortable" with granting the access rights, instructed his counsel, Mr. Bromm, to create a "background memo" to Mr. Livingston that would document the obligations of the OOTP with respect to records management. This memo was prepared by Mr. Bromm with revisions by Don Fawcett, Senior Counsel and Team leader of the Access and Privacy Law Group at the Ministry of Government Services. Mr. Nicholl conveyed this advice to Mr. Livingston in a call and e-mail in the afternoon of January 31, 2013. In the body of this e-mail (Exhibit 15, Tab G). Mr. Nicholl cautioned Mr. Livingston as follows:

"I understand that at the present time there is an FOI matter related to your office that is currently under appeal. As a result, my recommendation would be to preserve the email accounts and records of any individuals involved in that matter until the appeal process is complete. This will avoid any allegation that your office improperly deleted records knowing that a matter was under appeal….Similar steps should be taken for any outstanding FOI requests for documents in the Premier's Office. Your office can work with Jamie Forrest, the Cabinet Office FOI coordinator, to identify the appropriate individuals….[T]here is an outstanding Order of the Legislative Assembly with respect to the production of records related to the closure of the Oakville and Mississauga power plants. In light of the risk that this matter could be raised in the House in a new Session, steps should be taken to search for and preserve any records related to these matters, and to document those steps in writing, to again avoid any allegation that records were improperly deleted."

[41] There was also evidence that retainable government records were saved either intentionally or inadvertently on the hard drives of the computers that were wiped. There was evidence that POCO staff saved documents in their user profiles. Mr. Gitt testified that he "sometimes" saw "files" saved to the "C" drive while conducting desktop visits to assist POCO staff with IT issues. He also testified that e-mail attachments could inadvertently be saved to the "C" drive as well. Ms. MacKenzie testified that staffers might have received a final product from someone else as an attachment to an e-mail and saved that document temporarily to their desktop. As previously mentioned, Ms. Gair said that she would sometimes save documents to her desktop.

[42] Both Mr. Livingston and Ms. Miller were senior public servants during the relevant time-frame of these allegations. The e-mails they wrote, found in Exhibit 22, could lead the trier of fact to conclude that both were politically savvy and sophisticated. Mr. Livingston also had significant high-level business experience in the private sector. A jury could reasonably conclude that Mr. Livingston knew, and was becoming increasingly concerned about work related documents being saved to, and remaining on, the hard drives of OOTP staff. Or, at the very least, that it was reasonably foreseeable to both defendants that there were retainable records on the hard drives.

2) A Reasonable Inference That the Defendants Obtained Administrative Rights Dishonestly Is Available

[43] There is evidence from Mr. Faist's unsuccessful attempt to wipe Ms. Miller's computer, as well as the e-mail exchanges which followed, that both defendants knew their normal user privileges did not allow them to wipe the drives and that they required elevated authorization to do so (Exhibit 22, Tabs 110-114). Granting a normal user administrative rights over multiple computers was highly exceptional and required authorization. Mr. Stenson testified that he had never provided this kind of administrative access to someone who was not in IT in his 27 years in the Ontario Public Service (OPS). Mr. Stenson and Mr. Gitt both testified that this was an "unusual request."

[44] Mr. Wallace gave evidence that, in the circumstances of the transition, he reserved to himself the authority to make that decision. No one else had the authority to grant these rights.

[45] Mr. Livingston did not tell Mr. Wallace of the initial attempt to log-on by an outsider, Mr. Faist. Mr. Livingston did not tell him that the administrative access would be used not by the person to whom it was granted (Wendy Wai, Mr. Livingston's executive assistant), but by a non-OPS, non-security-cleared individual contracted not through the OPS but through the Liberal Caucus Service Bureau (Exhibit 20, Tabs 14-15). Rather, Mr. Wallace testified that Mr. Livingston told him that he required administrative access to remove "personal information" from his computer. Mr. Bromm corroborated this point. It was his understanding that the request was for Mr. Livingston to wipe the hard drive of his computer.

[46] Mr. Wallace was unequivocal that he would not have granted the access had he known that it would be used by a non-OPS employee who was not properly contracted or security-cleared. This would be contrary to the "decision rule" he used during a transition to determine whether access should be granted: granting of the access must not create any new precedent. He testified that it would also have created other serious concerns which would have militated against granting this access.

[47] There is some evidence that Mr. Wallace learned from Mr. Hume, after the January 30th meeting where Mr. Livingston's request for access was discussed, that the OOTP was going to have the work done by somebody "from the outside." Mr. Wallace testified that he thought the idea was so outside normal procedure that he dismissed it – it did not "penetrate [his] consciousness."

[48] One reasonable inference which could be drawn is that Mr. Livingston deliberately misinformed Mr. Wallace about his intentions regarding the use of the administrative rights. Mr. Livingston knew that had he told Mr. Wallace the truth about why he wanted access and how it was going to be used, Mr. Wallace would not have granted him the administrative rights to access the computers in the OOTP.

[49] A jury would be entitled to reasonably conclude that Mr. Livingston dishonestly obtained administrative rights from Mr. Wallace under false pretences and without legal justification or colour of right.

[50] There is also evidence that Mr. Faist did not go through any procurement process or have a formal contract. He invoiced and was paid by the Liberal Caucus Service Bureau. Mr. Faist did not have security clearance. He did not use log-on credentials granted to him by OPS IT to do the work, but used the credentials of an OPS employee who was granted the administrative right. Linda Jackson, Chief Administrative Officer in Cabinet Office, was clear in her testimony that any time a service was required that the government did not have the resources to deliver, a procurement process subject to the principles outlined in the Management Board of Cabinet Procurement Directive would be followed.

[51] The applicants say this evidence should be weighed against the fact that this procedure was almost identical to how Mr. Faist had worked on network security for the Ontario Provincial Police's Major Case Management System. Further, Mr. Bromm testified that there are some situations where outside contractors would work on Office of the Premier computers. I agree that a trier of fact might ultimately place little, if any weight, on the fact that Mr. Faist did not have security clearance.

[52] Instead of relying on POCO IT to do the wiping of the hard drives, the defendants enlisted Mr. Faist to do the job at a cost of $10,000, paid for by the Ontario Liberal Party. The defence submitted that there is evidence that political staffers found it frustrating to deal with POCO IT. A jury could accept this as an explanation for why the defendants used Mr. Faist. Or, a jury could reasonably infer that the defendants did not ask POCO IT to wipe the hard drives because they were aware of the likelihood that OPS IT would not be authorized to do so. There is also an available inference that, by retaining an outsider rather than relying on OPS IT, the defendants sought to avoid the procurement process and as such, bypass any policies or instructions OPS IT may have been required to follow affecting destruction of the hard drives and the files on them.

[53] But the determination of that issue does not arise at this stage of the trial.

[54] As the Supreme Court of Canada in Arcuri instructs, at para. 23, I am required to weigh the evidence to assess whether it is reasonably capable of supporting the inferences that the Crown asks the trier of fact to draw. That weighing is limited. My function at this stage of the trial is to determine whether the evidence, if believed, could reasonably support an inference of guilt. In doing so I have taken into account the totality of the evidence, including the following exculpatory evidence.

[55] There was no effort to conceal Mr. Faist's activities. There is evidence that political staffers were sometimes frustrated with the services of OPS IT, which could be seen as justification for the defendants' decision to use Mr. Faist to wipe the hard drives. There is also evidence that OOTP staff were encouraged to save work product of long-term business value to the network, or shared drives. For example, Ms. MacKenzie said that she and her Issues Management team had a "strict" practice of saving their work to the shared "G" drive.

[56] As well, I have taken into account that the only drives that were wiped were for people who were leaving the OOTP. While many of the individuals selected to have their hard drives wiped were also named in the e-mails requesting FOI record searches, there are people who remained in the OOTP after transition who were also included in the FOI requests. The individuals whose hard drives were wiped were specifically selected by Mr. Livingston and Ms. Miller in an e-mail exchange on February 1, 2013 (Exhibit 22, Tab 125).

[57] I have also taken into account that computers in the OOTP could use software called Citrix to remotely access resources of the Liberal Caucus and Liberal Party. Citrix could be used to save such documents to the local "C" drive. Mr. Wallace testified that he would "fully expect" that caucus or political records would wind up on OOTP computers. Mr. Bromm gave evidence to the same effect. The defendants have put Citrix forward as part of their explanation for why the hard drives were wiped.

[58] In my view these are pieces of circumstantial evidence which support a competing inference that the defendants lacked the requisite intent to commit mischief to data. While this exculpatory evidence serves to arguably weaken the Crown's case, it does not, at this stage of the proceedings, defeat it.

[59] The point is that reasonable, yet competing inferences can arise from the totality of the evidence which are capable of supporting the position of either the Crown or the defence. Ultimately, it is for the trier of fact to weigh those competing inferences in order to determine whether the Crown has proven its case beyond a reasonable doubt.

[60] On the whole of the evidence, a jury could reasonably conclude that the defendants attempted to delete data without legal justification, excuse or colour of right.

[61] The application for a directed verdict on the count of commit mischief to data is allowed in part. That count will proceed as one of attempt to commit mischief to data.

Count 3: Unauthorized Use of a Computer

[62] I now turn to Count 3, "Unauthorized Use of a Computer."

Offence Provisions

342.1(1) Every one who, fraudulently and without colour of right…

(c) uses or causes to be used, directly or indirectly, a computer system with intent to commit an offence under paragraph (a) or (b) or an offence under section 430 in relation to data or a computer system, or

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or is guilty of an offence punishable on summary conviction.

Elements of the Offence

[63] The elements of the offence are as follows:

1. That the accused used or caused to be used, directly or indirectly a computer system with intent to commit the offence of mischief to data; and

2. That the accused did so fraudulently and without colour of right.

[64] To fall within the scope of s. 342.1, the defendants' use of the computer must have been unauthorized and the accused must have known that it was unauthorized. However more is required. In R. v. Parent, 2012 QCCA 1653 at para. 37, the Quebec Court of Appeal held that the "fraudulently" requirement is an independent part of the actus reus of the offence and requires behaviour that a reasonable person in the circumstances of the defendant would consider a "dishonest activity." As the court in Parent explained at para. 36, the voluntary use of a computer "for prohibited purposes is clearly a dishonest act." The defendants must also have intended to use the computer to commit mischief.

[65] The evidence described and conclusions made regarding the evidence on the non-suit motion on count 2 apply, as well, to count 3, keeping in mind that there is an added element of "fraudulently" to count 3. In this regard, there is evidence upon which a jury could reasonably conclude that:

• Both defendants intended to destroy data on the hard drives of computers used by themselves and others in the OOTP;

• Their motive was to ensure there were no recoverable records that would demonstrate that the defendants and others did have FOI responsive records they claimed not to have and to ensure that no documents remained on those computers for future production orders from a Legislative Committee.

• It was reasonably foreseeable to the defendants that such records existed on the hard drives.

• Mr. Livingston fraudulently obtained administrative access rights from Mr. Wallace to wipe the computers in the OOTP.

• The indiscriminate wiping of the hard drives by Peter Faist was not authorized by the Secretary of Cabinet; and

• Neither defendant had a legitimate colour of right or honestly believed they did in destroying data belonging to any other staff member in the OOTP, or in destroying any retainable work documents, including e-mails on their own computers.

[66] There is evidence upon which a jury could infer that Ms. Miller was a party to both of the remaining counts. She was the person who enlisted Mr. Faist to wipe the hard drives. There is also evidence that she selected the names of individuals whose computers were to be wiped, and that she provided a list of those names to Ms. Gair to in order to assist Mr. Faist.

[67] I have considered the exculpatory evidence in my analysis on this directed verdict motion and my conclusions on count 2 apply to count 3.

[68] I am satisfied that there is some evidence on each essential element of count 3. On the whole of the evidence, a jury could reasonably conclude that the defendants used a computer system with the intent to commit mischief to data and did so fraudulently and without colour of right.

[69] The application for a directed verdict on this count is dismissed.

November 9, 2017

Justice Timothy R. Lipson