Martin Regg Cohn: Crime and punishment the epilogue to gas plant deletions

Two elections and seven years ago, Dalton McGuinty made a fateful political calculation that would come back to haunt him. And hound his party.

Days away from the 2011 vote, the then-premier acquiesced to opposition pressure — and placated local residents — by cancelling a gas-fired power plant in Mississauga. Back in 2010, he made a similarly political calculation to stop a controversial Oakville power plant.

Costly and consequential decisions — financially, politically, morally, criminally. Costs that no one ever came clean about — not McGuinty, not his cabinet, nor the opposition (when clamouring for cancellation) — because with such high political stakes, everyone low-balled the dollar figures.

Now, eight weeks away from the 2018 election, the third consecutive campaign in which the static and stench from gas-fired power plants will waft across the political landscape, the final verdict and sentencing are in. Will it affect the final judgment of voters on June 7?

On Wednesday, David Livingston was taken away in handcuffs after a judge sentenced him to four months in jail for the crime of unauthorized use of a computer for the deletion of emails sought by a legislative committee.

Livingston was McGuinty’s last chief of staff before he resigned as premier, but he was no political hack. A career banker and infrastructure chief before taking the top job, Livingston was almost apolitical in his approach — determined to draw on his private sector acumen to bring discipline to the disarray of public life.

This week, that disdain was his downfall. Livingston’s mistake was to bring a corporate “can-do” mentality to the halls of government, where legal niceties are harder to ignore.

All others escaped punishment — including McGuinty himself, who was never the subject of police investigation, though his personal reputation remains tarnished. But Livingston’s sentence is surely a gift to the opposition (he is now out on bail while appealing).

The Tories and New Democrats have gained extra ammunition for fundraising appeals and future TV ads showing jail doors closing on the governing Liberals. Yet the gas plant motif failed them in 2011 and 2014, and it is unlikely to prove decisive in 2018, for the simple reason that people’s opinions are already firmly entrenched on the corruption question.

Voters either believe the Liberals are irredeemably weighed down by barnacles attached to the ship of state in years past. Or they worry about future years burdened by PC Leader Doug Ford as premier. Or they dream of an NDP victory one day soon.

The political outcome on the eve of the campaign is unpredictable. But the impact on the practice of politics — how politicians and officials behave behind closed doors — is undeniable after the judge’s sentencing.

Livingston’s private sector mindset led him to dismiss as “political bull—-” the insistent demands from a legislative committee during the 2011-14 minority legislature years, court heard. Back then, the opposition formed a majority that demanded sensitive power plant documents.

He was partly right that opposition MPPs on the committee were using their majority muscle to mount a politically motivated fishing expedition. But he was wrong to believe he could place himself above the law when the legislature acted beneath itself. Even if Tories and New Democrats were using and abusing committee powers, the legislature remains supreme — right or wrong.

McGuinty and other Liberals argued that their email deletions were little different from the shredding trucks used by the Tories when they lost power in 2003, but it’s a faulty analogy. The previous Progressive Conservative government wasn’t shredding documents sought by lawmakers.

Livingston seemed to believe inconvenient laws could be ignored. We still don’t know precisely what he deleted.

According to Justice Timothy Lipson, “the Crown was unable to establish what, if any, documents were destroyed and what, if any, harm was caused.”

And that is the essence of his transgression. Leaving legislators in the dark, by design, “strikes at the heart of the democratic process,” the judge concluded.

Livingston, who exited from the premier’s office together with McGuinty five years ago, is paying the price today. Despite the best efforts of the opposition to make Kathleen Wynne pay for the sins of her predecessor, the corruption allegation never stuck to her in the 2014 election, possibly because voters understood that the gas plant cancellations predated her.

Now the Tories and New Democrats are mischievously (and unsurprisingly) conflating Livingston’s crime with the Liberals’ ill-fated decision to pull the plug on those power plants, arguing that his jail sentence still leaves the province out of pocket for the estimated costs of a billion-dollar boondoggle. But deletions and cancellations are two different things — not least because the opposition parties and the public called for the latter.

The cancellations were costly, but it’s the deletions that were criminal. Now, with an election looming, it’s once again destined to be political.

Martin Regg Cohn is a columnist based in Toronto covering Ontario politics. Follow him on Twitter: @reggcohn

TORONTO STAR

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