Crown urges 6 months jail for ex-McGuinty aide; defence wants discharge

David Livingston, former deputy chief of staff to ex-Ontario premier Dalton McGuinty, arrives at court in Toronto on Tuesday, Nov. 7, 2017. THE CANADIAN PRESS/Colin Perkel

TORONTO -- The sentencing hearing for a former top Ontario political aide caught up in the province's gas plants scandal heard glowing accounts of his character on Monday as the prosecution called for a six-month jail term while the defence urged a conditional discharge.

As former premier Dalton McGuinty's chief of staff, prosecutor Tom Lemon said, David Livingston was the "premier's designate" who wilfully ignored advice from senior bureaucrats in thwarting democratic accountability.

Livingston faces sentencing for illegal use of a computer -- a second guilty finding was stayed Monday. The conviction relates to his destruction of potentially embarrassing documents about the Liberal government's costly decision to cancel two gas plants before the 2011 provincial election.

"The course of conduct underlying Livingston's guilt was a planned and deliberate attempt to destroy retainable records by a sophisticated government actor in a very senior position of public trust and authority," Lemon said. "Such a person must be held to a high standard. The public is entitled to expect nothing less."

In its submissions, the defence said it would be outrageous to send a first-time offender with an unblemished record of successful public and private-sector service to jail, especially since there was no evidence he caused any actual harm.

"The Crown is being influenced by the public clamour surrounding this case to seek a dramatically severe penalty -- one that would result in imposition of a harsh and excessive sentence," defence lawyer Brian Gover said in a written submission.

"The most appropriate disposition is to grant Mr. Livingston a conditional discharge that requires him to perform community service."

A conditional discharge would mean Livingston would eventually have no criminal record if he fulfilled any imposed conditions.

Ontario court Judge Timothy Lipson asked whether house arrest might be an appropriate sentence, prompting Lemon to say any non-custodial sentence should be at least 12 months and carry substantial conditions.

Earlier in the day, dozens of people appeared in court or had their letters read aloud in support of Livingston --among them relatives, friends, and business and political associates.

All praised his honesty, generosity and selfless dedication to the numerous public and private enterprises with which he has been associated over the decades.

"I always found Mr. Livingston to be open and honest," said former Liberal politician Rick Bartolucci. "I never observed a hidden agenda."

Some choked back tears as they said the actions for which Livingston was convicted -- hiring an outsider to wipe data from computers in the premier's office -- were totally out of character for the man they know.

Livingston's wife of 40 years, Anne Grittani, who has consistently accompanied him to court, described how the charges had turned their lives upside down. They've had cameras thrust in their faces and had to listen to people denigrating him, she said.

"David has always done a lot of work for charities," Grittani said. "David is the finest person I know. He's a man of great character and integrity."

Lipson found Livingston guilty last month of two counts: illegal use of a computer and attempted mischief to data.

However, Monday's proceedings began with Lipson staying the guilty finding on the attempted mischief charge at the defence's request and with the agreement of the prosecution. The reason, Gover explained, is that all the essential elements of the offence were included in the illegal use of a computer count.

The upshot is that Livingston will be convicted of one of the three charges related to destruction of documents about the gas plants that police laid in 2013 against him and his deputy Laura Miller, who was acquitted last month. A charge of breach of trust was dropped against both accused at the outset of the trial.

Dylan Moscovitch, who won a silver medal in team figure skating at the 2014 Olympics in Sochi, Russia, said Livingston had been a financial and moral supporter and mentor.

"Not once have I heard anything but positivity spoken about his character and integrity," Moscovitch said in court.

The sentencing hearing continues Tuesday with Gover, who said Livingston only became chief of staff at McGuinty's request, continuing his oral arguments.