Pamela Diane Hrick

Following conviction on charges of Attempt to Commit Mischief to Data and Unauthorized Use of a Computer, the defendant, a former Chief of Staff to the Premier of Ontario, was sentenced to four months imprisonment followed by twelve months probation with 100 hours of community service.

The defendant had directed the wiping of computer hard drives in the Office of the Premier to destroy records responsive to Freedom of Information requests and anticipated legislative committee production orders regarding the gas plant controversy.

The court found the offence struck at the heart of democratic accountability and transparency, warranting incarceration despite the defendant's otherwise exemplary character and community contributions.

David Livingston, Chief of Staff to the Premier of Ontario, and Laura Miller, Deputy Chief of Staff for Communications and Strategy, were charged with Breach of Trust by a Public Official, Commit Mischief to Data, and Unauthorized Use of a Computer.

The Crown abandoned the Breach of Trust charge.

The defendants were accused of directing the wiping of twenty computers in the Office of the Premier during the transition from Premier McGuinty to Premier Wynne in early 2013, allegedly to destroy records responsive to Freedom of Information requests and potential Legislative Standing Committee Production Orders related to the controversial cancellation and relocation of the Oakville and Mississauga gas plants.

The Crown alleged the defendants obtained administrative rights through deception and hired an outside IT consultant to indiscriminately wipe hard drives.

The defendants claimed they sought only to delete personal information and Liberal Party documents from departing staff computers.

Justice Lipson found Livingston guilty on both remaining counts (Attempt to Commit Mischief to Data and Unauthorized Use of a Computer) but acquitted Miller due to insufficient evidence of her knowledge of Livingston's deceptive means in obtaining administrative rights.

The defendants, 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.

The Crown withdrew the breach of trust count at the close of its case.

The defendants brought a motion for a directed verdict of acquittal on the remaining two counts.

The court found that while the Crown failed to establish that actual data was destroyed, there was sufficient evidence that the defendants attempted to commit mischief to data without legal justification or colour of right.

The motion was allowed in part on the mischief to data count, which was reduced to attempt to commit mischief to data.

The motion was dismissed on the unauthorized use of a computer count.

The Crown sought to qualify Robert Gagnon, a retired OPP officer, as an expert in computer systems operation and forensic recovery of computer data.

The defence opposed qualification, arguing that Gagnon's extensive involvement in the police investigation and his expressed bias regarding the defendants' guilt disqualified him from providing independent and impartial expert evidence.

The court excluded Gagnon's evidence, finding that he had conflated the roles of expert and investigator, participated extensively in investigative strategy and team meetings, and demonstrated lack of independence and impartiality through his communications recommending charges and providing strategic legal advice to investigators.

The Court allowed the appeal and quashed the National Energy Board authorization for offshore seismic testing in Baffin Bay and Davis Strait.

It held that the Board’s approval process triggered the Crown’s duty to consult, and that the Crown may rely on a regulatory process to fulfill consultation obligations where that process is adequate.

On these facts, consultation was inadequate given the significance of Inuit treaty harvesting rights, the potential impacts of testing, limited participation opportunities, and insufficient accommodation.