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SENTENCING - Theft and offences resembling theft - Unauthorized use of computer

Tuesday, May 29, 2018 @ 8:37 AM  

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Sentencing of Livingston, who was found guilty following a trial of Attempt to Commit Mischief to Data and Unauthorized Use of a Computer. Livingston had been Chief of Staff in the Office of the Premier of Ontario (OPO) between May 2012 and February 2013. Livingston and his Deputy Chief of Staff, Miller, enlisted and directed Faist, Miller's partner, to wipe data from 20 computers in the OPO. The purpose of the data deletion was to ensure no records remained regarding a Freedom of Information and Protection of Privacy Act(FOI) request or a future Production Order of a Standing Committee of the Legislature inquiring into a gas plant controversy. Livingston had deceived the Secretary of Cabinet, Wallace, into granting him administrative access to the computers in the OPO. Livingston, 65, was a first offender with an exceptional employment history. The pre-sentence report was positive and Livingston provided numerous reference letters attesting to his good character and exceptional community service. As the two offences constituted a single wrong or delict, a conditional stay was entered on the less serious offence of Attempt to Commit Mischief to Data. On the remaining count, the Crown sought imprisonment of six to 12 months. Livingston submitted a conditional discharge was fit and appropriate.

HELD: Livingston sentenced to four months' imprisonment, followed by 12 months' probation. The most serious aggravating factor was Livingston's attempt to interfere with parliamentary democracy and the public's access to information. Livingston had chosen to defy the express caution he had been given about the government's obligations to produce information to the Legislature through its standing committees. Livingston's actions were an attempt to interfere with the democratic process. A further aggravating factor was Livingston's abuse of a position of trust and authority. The position of Chief of Staff was not a "public office" or a "position of public trust"; members of the OPO were not public servants. Nevertheless, Livingston wielded significant power and influence, as was clear from his request to Wallace to access the OPO computers. Livingston abused the trust and authority given to him in regard to his actions in wiping the data from those computers. Livingston was not, however, guilty of Breach of Trust by a Public Officer. Also aggravating was the planning and deliberation involved in the offence. Mitigating factors included Livingston's previous good character, community contributions, the stigma resulting from the adverse publicity, and negative employment and travel consequences. Regarding proportionality, this offence was very serious as it was an attempt to thwart the proper functioning of parliamentary democracy and parliamentary process. Livingston's conduct was egregious and his degree of responsibility high. He had been repeatedly warned not to delete retainable records, but deliberately went against that advice. He could not attribute his criminal conduct to his inexperience in the Premier's Office. In consideration of the proper sentence, a conditional sentence would not adequately meet the need of denunciation or deterrence. The aggravating factors were so serious as to preclude a conditional sentence. The difficulties of detection and investigation of the offence weighed in favour of incarceration. The sentencing objective of reparation for harm done to the community was also significant. However, the period of incarceration suggested by the Crown did not adequately reflect the mitigating factors. Livingston was sentenced to four months' imprisonment, followed by 12 months' probation. Sentence: Four months' imprisonment; 12 months' probation.

R. v. Livingston, [2018] O.J. No. 1913, Ontario Court of Justice, T.R. Lipson J., April 11, 2018. Digest No. TLD-May282018003