03.28.2014 07:43 AM

“That act is not a criminal statute and carries no penalties.”

That’s a tiny quote from one of the early stories about the gas plant/email “scandal.” In the avalanche of hysterical, over-the-top coverage that has happened since, it would be easy to miss or forget that little bit of information, wouldn’t it?

I went to law school; I love the law. When you go to law school, you are taught to (a) look at a bunch of facts, and then (b) apply the accepted rules – case law, statute law – to those facts to (c) determine and/or analyze what kind of problem you’ve got, and what you should do about it.

The facts are these: political staff deleted some emails and stuff on their computers. They sought outside help in doing that. Happens  all the time – even, I can assure you, in the offices of the OPP and the Opposition.

The law is this: nada. As per the headline to this post, there is no law, and nothing that carries any penalties.  Nothing.

The analysis is this: lacking an actual law, the OPP – which has been giddily leaking to the Ottawa Citizen, Gomery-like, about their “investigation” for weeks – has decided there was a “breach of trust” here.  Can’t find a law to charge someone with? Then say there’s been a “breach of trust.” It’s an all-purpose, catch-all.  But no less than the Supremes have said that, to make it stick, there has to have been “corruption, partiality (or) oppression.” I don’t see that here. Not even close.

This  affair is a load of bollocks.  “That act is not a criminal statute and carries no penalties.” That’s what you need to know about this “scandal” – namely, there isn’t one.

Oh, and the geniuses who sent out the Premier of Ontario no less than three times, yesterday, to deny any and all knowledge of this gas plant/email stuff?

They’re the Paul Martin crew (one presently a Newstalk 1010 host), who piloted the Liberal Party of Canada into the ditch in 2004-2005.  They sent Martin out multiple times to deny any and all knowledge of the sponsorship stuff, too. Remember that?

Didn’t work, as I recall.




  1. Matt says:

    Re bringing in outside help to delete records:

    If it was all above board, wouldn’t Mr. Faist have had his OWN credentials (username, password ect) set up for him to allow him access to complete the work?

    Why did Livingston (allegedly) give Faist the opportunity to use the administrative rights to get on the system for Livingston’s executive assistant Wendy Wai without her knowledge?

  2. doconnor says:

    Just because there was no criminal offense doesn’t mean it wasn’t a scandal.

    If he purposely deleted emails that where requested by committee, that would be contempt of Provincial Parliament which Parliament could send you to jail for.

  3. Steven says:

    Hudak was a Minister in the Harris and Eves PC Governments.

    What was the policy on retention of Cabinet documents on his watch? Can we still see their internal memos, phne messages, etc.?

  4. TimL says:

    “Look, it wasn’t technically a crime” isn’t a very rousing defence.

    • Warren says:

      Really? You’re a lawyer. So you’re saying you wouldn’t plead that there’s no underlying law? Seriously?

      • TimL says:

        No, not a lawyer. Just work among them! I mean it doesn’t sound like a great defence to a scandal, like Chris says below.

    • Greg from Calgary says:

      Maybe Rob Ford could use that lol. “It’s not technically illegial to lie about using crack so leave me alone” lol. Or, “Slurring my words in public isn’t technically illegial so move along folks.”

    • Chris says:

      Particularly when the court is that of public opinion.

      Nobody who is pushing this cares about real legal repercussions.

      I am as big a fan of the McGuinty years as anyone but lately I’ve been scratching my head a bit over this. It just stinks.

  5. Coelocanth_Jones says:

    I don’t have any sort of legal training whatsoever, so I’m obliged to take your word on the fact that nothing illegal happened here. What though, Warren, do you feel must be done to counter the quickly growing perception that something seriously crooked did take place, or that this represents a breach of trust in any way?

    • Warren says:

      I’d have a press conference showing shredding machines in OPP and Opposition offices. And then I’d demand a criminal investigation of THEM.

      • Steven says:

        So why isn’t the braintrust around Wynne doing so?

        Wynne’s simply denying the practice of deletion, shredding, etc. on her watch is giving legitimacy to the assumption that it’s illegal or at least ethically improper to do so.

        • Coelocanth_Jones says:

          Well, these responses doesn’t provide absolution. it just says that everybody is as bad as us. Wynne may have no better option, but it may come off as a stale hit

        • Kevin T. says:

          Because Wynn’s braintrust is Paul Martin’s brainfart.

      • Bruce A says:

        That would certainly put a damper on things.

  6. Adam says:

    Is it not against the law to destroy records? (Not a lawyer, although I did play one in my Grade 11 law class mock trial–“OBJECTION! Badgering the witness!”)

  7. Peter Varley says:

    Alas, Warren, you’re wrong, on two counts: First, to say “there is no law” ignores the actual one invoked in this matter, which is the Archives and Recordkeeping Act (passed by the McGuinty Liberals, incidentally). Technically though you are correct in that it carries no penalties. It remains a law, however, regardless of being a stupid one for having no sanctions once it is shown to have been broken, as was clearly the case here.

    But second, and on the bigger question related to this story, members of the gas plants committee called in the OPP once the deletion of untold thousands of government emails related to the gas plants affair became apparent in the course of their hearings. The OPP undertook to investigate this matter per the federal Criminal Code provisions dealing with breach of trust. They carry a five-year term in the slammer.

    Otherwise, good luck with this one.

  8. Belinda Vinmont says:

    Duval alleged Livingston “might have compromised the integrity” of the premier’s office by bringing Faist in, bypassing “rigorous” government protocols on using outsiders: “No security screening was ever conducted on Mr. Peter Faist even though he was allowed access to the desktop computers of Premier McGuinty’s office and potentially sensitive government documents,” Duval wrote.

    From a counterintelligence perspective, this is inexcusable and of the same magnitude as Rob Ford slumming around with known gangsters. It puts the Canada State at risk. Just because something is legal doesn’t make it right, nor does it make it tactically beneficial. The CCP, FSB, organized criminal gangs, pay handsomely for sensitive government data. This in not mere deletion of emails, but bringing in unscreened, unknown person(s) to wipe hard disks and maybe do God knows what else – e.g. keyloggers. Time to get in the game.

    “Look, forget the myths the media’s created about the White House– the truth is, these are not very bright guys, and things got out of hand” – Deep Throat

    • Iris Mclean says:

      Good point. I’d be more concerned about a breach of security re sensitive files. Not even a background check on Peter Faist? Let’s all hope he’s an honest person, and only cleaned up emails and such.
      At the very least, Livingston has some splainin’ to do.

  9. DonaldE says:

    How would you rate the gas plant scandal against the Rob Ford scandal? Venial or mortal sins?

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