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CRIMINAL CODE OFFENCES - Wilful and forbidden acts in respect of certain property - Mischief

Wednesday, February 21, 2018 @ 8:43 AM  


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Trial of Livingston and Miller, charged with unauthorized use of a computer and attempting to commit mischief to data. In 2012 and 2013, the Government of Ontario’s decision to cancel and relocate the Oakville and Mississauga gas plants dominated political discussion at Queen’s Park. During that time period, Livingston was Chief of Staff in the Office of the Premier of Ontario (OPO) and Miller was his Deputy Chief of Staff. Freedom of information requests were received by OPO officials in relation to the gas plants. The counts alleged that Livingston and Miller attempted to delete data from computers of the OPO and fraudulently and without colour of right used or caused to be used a computer system with intent to commit the offence of mischief in relation to data. There was no dispute that the defendants enlisted Faist, Miller’s partner, to erase data from the hard drives of computers used by certain staff in the OPO as well as their own computers. Faist’s first attempt to install wiping software on Miller’s computer failed because Miller did not have the necessary administrative rights. Livingston therefore sought and obtained those rights from Wallace, the Secretary of Cabinet. Faist then wiped the hard drives of 20 computers in the OPO. The Defence took the position that Livingston and Miller were justifiably concerned about personal information remaining on the computer hard drives and they had good reasons for lacking confidence in the ability of government IT services to reliably clean the hard drives. The Defence submitted that was the reason why they engaged Faist to perform the task. The Defence submitted that neither defendant contemplated nor committed a crime.

HELD: Livingston found guilty and Miller found not guilty. Livingston demonstrated a general distaste for keeping relevant documents and showed a marked interest in how his staff could permanently delete emails. It was significant that many of the people selected by the defendants to have their hard drives wiped were named in emails requesting freedom of information searches. There were several pieces of circumstantial evidence that were inconsistent with Livingston’s stated plan to wipe only personal data from the hard drives. The defendants did not have colour of right over work related data on OPO computers and they knew that the data intended to be wiped from other OPO employees’ computers was not their own. Livingston resorted to extreme and unauthorized measures to permanently delete records, and he dishonestly obtained administrative rights from Wallace. While Miller was the person who enlisted Faist to wipe the hard drives, she was not present at the meetings between Livingston and Wallace. The Court could not exclude a reasonable inference that Miller believed on good authority that she had colour of right to access computers in the OPO.

R. v. Livingston, [2018] O.J. No. 254, Ontario Court of Justice, T.R. Lipson J., January 19, 2018. Digest No. TLD-Feb192018004