DID ROBERT GHIZ AND NEIL STEWART COMMIT A CRIME?

[THIS IS THE  FINAL VERSION, UPDATED ON MAY 6, 2018]

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The Federal Investigations Unit of the RCMP recently issued a News Release (Guardian, April 16) announcing that: “After an extensive investigation into allegations in relation to what was known as e-gaming, including conducting over 50 interviews, there was no evidence of criminality, or grounds to lay any charges.”

I have been conducting my own investigation into e-gaming over the past year, and I am now convinced the RCMP erred in their finding. My research found sufficient reason to believe Robert Ghiz and Neil Stewart each committed a crime, and charges should therefore be laid against the former Premier and current Deputy Minister of Finance.

This report systematically lays out the facts and arguments for this conclusion.  I have attempted to make this report as concise as possible by providing numerous links to supporting documents and source material, rather than citing those documents even more extensively than I have.

There were many improprieties; incidents of non-compliance with government policies and procedures; apparent conflicts of interest; and occasions where provincial laws were broken with the e-gaming initiative; as was confirmed by the PEI Auditor General’s (AG) special report on e-gaming.

There may have been, therefore, other crimes committed by a number of other people involved with e-gaming, or possibly even other crimes by Robert Ghiz and Neil Stewart. However, this report deals solely with the issue of the destruction of e-gaming records ordered by Robert Ghiz and Neil Stewart, with an eye to determining whether those acts constituted a criminal offence.

The scope of the information I have considered for this report is as follows:

  • All e-gaming news reports on e-gaming from Island newspapers and CBC ;
  • All PEI Legislative Assembly Hansard records mentioning “e- gaming”;
  • The Auditor General’s 2016 Report on e-gaming; Special Assignment: Government Involvement with the E-gaming Initiative and Financial Services Platform;
  • All transcripts of the seven (7) meetings which the all-party Public Accounts Committee (PAC) of the PEI Legislature held on e-gaming;
  • All documents filed in the Capital Markets Technologies Inc (CMT) civil litigation legal action filed in the PEI Supreme Court; and
  • An interview with Sergeant Graeme Shaw with the Federal Investigations Unit of the RCMP.

To find it reasonable to believe that a person known to have broken a particular law did so with criminal “intent”  demands a very high bar. To accuse someone of a crime is not a trivial matter.  Laws are broken for many reasons, and seldom constitute criminal offences.  I have kept that in mind throughout the course of my investigation.

Given both the seriousness and sensitivity of my finding, I have taken care to document (with links to source material) all essential and relevant facts for the arguments and claims I am making in this report.

The “guide” and evaluative “criteria” upon which I relied to make what I believe is a reasonable determination that there was indeed the commission of similar but separate criminal offences by Robert Ghiz and Neil Stewart are adopted from a recent legal precedent, a remarkably similar case just adjudicated in Ontario.

So, before getting into the details surrounding the destruction of e-gaming records by Robert Ghiz and Neil Stewart in PEI, I’ll first offer a summary overview of that case in Ontario, commonly referred to as the “gas plant” scandal.  I believe that if the Ontario Provincial Police (OPP) had conducted the e-gaming investigation in PEI  – using the same standards and criteria for assessing whether criminal charges should be laid as they relied on in their investigation of the gas-plant case in Ontario – they would have filed one criminal charge against Robert Ghiz, and one criminal charge against Neil Stewart.

To be clear, I am not saying that either Robert Ghiz or Neil Stewart committed a crime.  I am only saying that the  information and uncontested  facts available at this time warrant a criminal charge being laid against both men. Whether such a criminal charge would result in a guilty ruling for  either Ghiz or Stewart is obviously a matter for the courts to decide.

1. The Ontario gas-plant scandal

On January 19, 2018,  former Ontario Premier Dalton McGuinty’s Chief of Staff, David Livingston, was found guilty of one count of Attempt to Commit Mischief to Data, contrary to s. 430(5)(a) of the Criminal Code, and one count of Unauthorized Use of a Computer, contrary to s. 342.1. of the Criminal Code,  for destroying government documents related to the Ontario Liberal government’s decision to scrap two gas plants ahead of the 2011 election; a decision which allegedly cost Ontario taxpayers roughly $1.1 billion.

That David Livingston authorized and arranged for the deletion of sensitive government records pertaining to the government’s decision to cancel the gas plants, in breach of a provincial statute, was never at issue.  In that respect, the facts demonstrated that he was guilty of contravening provisions of the provincial Archives and Record-keeping Act.

Of course, that did not mean that he was also guilty of  committing a criminal offence.  Timothy Lipson, the judge presiding in the case, made that distinction clear from the outset.  He clarified in his Written Decision that his chief task and duty in determining whether Livingston was guilty of committing a crime with respect to either of the two charges filed against him rested on the issue of whether the Crown could demonstrate that David Livingston acted with criminal “intent”:

Prior to issuing the verdicts, Lipson said that the case turned on whether the Crown could prove beyond a reasonable doubt that Livingston and Miller ordered the computers wiped with the intent to delete data that they had an obligation to retain. (My emphasis).

How was the deletion of data first discovered and then investigated by the OPP, leading to criminal charges?

When 56,000 government documents related to the gas-plant issue were tabled with the Estimates Committee of the Ontario Legislature, committee members soon realized there were no documents from the Minister of Energy‘s office.  A formal request for documents was issued by the committee; however, no documents were provided.

The  committee then issued an order to force compliance with the request for documents, to which the Ministry of Energy again refused to comply, citing issues of confidentiality and document sensitivity.  Eventually, the Premier’s former Chief of Staff was called before the committee and informed members that no political staff records were available. [For detailed information concerning this entire matter see: Report of the Committee’s Request for Documents From the Ministry of Energy, August, 2012].

While the committee itself was trying to obtain gas-plant records from the Ministry of Energy, on April 12, 2013, NDP committee member Peter Tabuns lodged his own complaint with the Privacy Commissioner asking for an investigation into “…what appears to be a breach of protocol and a violation of the Archives and Record-keeping Act and the Freedom of Information and Protection of Privacy Act.

On June 5, 2013, the Privacy Commissioner tabled her Report stating:

“While I cannot state with certainty that emails had been deleted improperly by the former Premier’s staff during the transition to the new Premier in an effort to avoid transparency and accountability, it strains credulity that no one knew that the practice of deleting all emails was not in compliance with applicable records management and retention policies.” [My emphasis].

The Information Commissioner’s report also found that the provincial law had been broken:

“The practice of indiscriminate deletion of all emails sent and received by the former Chief of Staff was in violation of the Archives and Record-keeping Act, 2006 (ARA) and the records retention schedule developed by Archives of Ontario for ministers’ offices.”

The Information Commissioner’s report launched an OPP investigation just two days after it was tabled (April 14, 2013), which determined that it was McGuinty’s Chief of Staff, David Livingston, who had ordered the destruction of the gas-plant records in the Minister’s office, and criminal charges were filed against him.

On January 19, 2018, Judge Timothy Lipson found Livingston guilty of two charges: (1) an Attempt to Commit Mischief to Data contrary to s. 430(5)(a) of the Criminal Code; and (2) Unauthorized Use of a Computer, contrary to s. 342.1. of the Criminal Code.  In his Ruling, Lipson stated:

Mr. Livingston’s plan to eliminate sensitive and confidential work-related data, in my view, amounted to a “scorched earth” strategy, where information that could be potentially useful to adversaries, both within and outside of the Liberal Party, would be destroyed. (Para 176, p. 61)

On April 11, 2018, Justice Timothy Lipson sentenced Livingston to 4 months in jail, 1 year probation and 100 hrs of community service.

A couple of comments from his Written Sentence  are of particular relevance to the e-gaming case in PEI:

“This offence is very serious because it involves an attempt by the defendant to thwart the core values of accountability and transparency that are essential to the proper functioning of parliamentary democracy.  Mr. Livingston’s plan was to deny the public its right to know about government decision-making with regard to the gas plant controversy.” (para. 49, p. 8). [My emphasis].

“Mr. Livingston attempted to frustrate the operation of the mechanisms of government accountability. A denunciatory sentence is required to reaffirm society’s legitimate expectation that those holding senior government positions conduct themselves with integrity and within the law. It was not for Mr. Livingston to unilaterally decide what the public should or should not know about the steps taken by government in its decision-making on the gas plant controversy.” (para. 57, p. 10). [My emphasis].

2.   The PEI e-gaming case

As in the Ontario gas-plant case, the destruction of sensitive government e-gaming records was first discovered within the scope of an investigation seeking e-gaming records which were not provided.  In the PEI case, however, it was PEI’s Auditor General, Jane MacAdam, (not a Legislative Committee) who first learned e-gaming records had been destroyed in the course of undertaking a special audit into the failed e-gaming, loyalty card program, and the establishment of a financial services platform initiative.  As she noted in her report:

“We are not confident that we received all relevant government records related to e-gaming, the loyalty card program, and the establishment of a financial services platform” (AG E-gaming report, section 7.1, p. 44).

NOTE: Although commonly referred to as the “e-gaming scandal or affair,” all references to “e-gaming records” in this report are meant to also include records relating to the loyalty card program, and the establishment of a financial services platform, given that these were essentially three aspects or phases of the same provincial government file.

Why was the AG not confident she had received all the relevant e-gaming records? Because, as she went on to explain elsewhere in her report:

“E-mail accounts of some former senior government officials who were key participants in the e-gaming initiative, the loyalty card program, and/or the financial services platform were closed, deleted, and could not be recovered. We were not provided any e-mails or other government records for these individuals.  We have received some records from other public bodies and sources external to government that should have been retained from these e-mail accounts.” (AG E-gaming report, Appendix: Scope Limitations, p. 4)

The AG did not provide the names of those senior government officials who had their email accounts deleted in her report [Special Assignment: Government Involvement with the E-gaming Initiative and Financial Services Platform], nor would government disclose those names – despite being asked at least eighteen (18) separate times by Opposition MLAs during Question Period in the Legislative Assembly.

It was only when the AG appeared before the Public Accounts Committee (PAC) of the PEI Legislature looking into the e-gaming affair – following the release of the AG’s E-gaming Audit Report on October 4, 2016 – that it became known that the deleted email accounts and missing e-gaming records belonged to three senior government bureaucrats heavily involved in the e-gaming file: (1) Chris LeClair, (Ghiz’s Chief of Staff); (2) Melissa MacEachern, (former Deputy Minister of Tourism and Innovation); and (3) Rory Beck, (former Clerk of Executive Council).

MacAdam clarified for the committee members that “six years is the retention period for semi-active records” in the Premier’s office [[Public Accounts Committee Transcript, February 15, 2017, p. 118]; however, given the importance of the e-gaming file, those records would – or should – have been classified as “active” records to this day, and most of them would certainly have been deemed “archivable” by the Provincial Archivist.

3.  Did Robert Ghiz and Neil Stewart commit a crime when they ordered the destruction of e-gaming records?

Both Robert Ghiz and Neil Stewart ordered the destruction of sensitive e-gaming records – including the email accounts of senior bureaucrats involved in e-gaming containing e-gaming records. As with David Livingston in Ontario, this was contrary to the provincial law requiring those records to be retained, specifically, s. 19.1(1) of the Archives and Records Act.

Robert Ghiz and Neil Stewart clearly intended for those emails to be destroyed when they ordered them deleted.  That both Robert Ghiz and Neil Stewart broke the law when they ordered the deletion of e-gaming records is not in dispute; the issue is whether there is reason to believe they did so to “…thwart the core values of accountability and transparency that are essential to the proper functioning of parliamentary democracy,” as Judge Lipson found was the case with David Livingston.  As Auditor General, Jane MacAdam, stated at the outset of her report on e-gaming:

“1.4 Throughout this report, there are numerous examples of non-compliance with legislation, policies, and controls. Although the dollars involved were not always significant, these legislative and policy requirement are designed to minimize risk to government and protect the interests of taxpayers. A number of decisions and actions demonstrated the lack of due regard for transparency and accountability.” (p. 1) [My emphasis]

The e-gaming record destruction orders issued by Robert Ghiz and Neil Stewart were certainly prime examples of both “non-compliance with legislation” (aka, “breaking the law”) and “decisions and actions” demonstrating a lack of due regard for transparency and accountability; however, it is also necessary to show that Ghiz and Stewart were aware of their moral and legal obligation not to destroy important and retainable e-gaming records to prove they acted with “intent” and therefore committed a crime.

But again, making that determination is ultimately the function and responsibility of the legal system and courts; however, all that is required to justify laying a charge for the crime of an Attempt to Commit Mischief to Data contrary to S. 430(5)(a) of the Criminal Code is a finding that there is probable cause to believe that Ghiz and Stewart attempted to commit mischief to data.

I believe the facts and arguments outlined in the following three sub-sections of this report offer sufficient cause to believe that Ghiz and Stewart attempted to commit mischief to data, and warrants laying a charge against each of them for the commission of this particular criminal code offence.

3.1  Prior knowledge of a moral and legal duty not to destroy government records

During the election campaign in the Spring of 2007, Robert Ghiz declared his intention to make government more accountable and transparent during a press conference at an event in Kensington, PEI:

“You are a Minister of the Crown. You are a representative of the people of Prince Edward Island. You have to be accountable to your constituents and to all people of Prince Edward Island. You need to make sure that you are following your own laws, your own rules and your own regulations. If you can’t do that, you should not be serving.” [Robert Ghiz, Guardian, May 24, 2007]. [My emphasis].

This particular news conference dealt specifically with Ghiz’s well-articulated platform regarding the essential importance of strict accountability and transparency regarding the fulfilling of government duties and responsibilities in accordance with all “laws, rules and regulations” in force. Just five (5) days after that news conference, Ghiz was elected Premier of PEI with a majority Liberal government.

Although Ghiz clearly understood that he had a moral duty to abide by not only the established laws, but also the rules and regulations established in government, it is nonetheless conceivable that such rules and regulations may not have been in place when he assumed office as Premier; or perhaps there were ambiguous policies and procedures in place at that time regarding the retention and disposition of government records, especially regarding electronic files and email accounts. I have investigated this matter thoroughly and found that not to be the case.

Just two months prior to Ghiz’s election (March, 2007), the Public Archives and Records Office of PEI issued an updated policy document specifically dealing with the retention and disposition of electronic government records:
Record Information Management: Managing Electronic Mail which not only offered clear guidelines for all government bodies and employees regarding the procedures and protocols to be followed for the classification, storage and deletion of government records, but tied those guidelines explicitly to both Treasury Board’s Recorded Information Management (RIM) Directives [5.01 – Introduction; 5.02 – Policy Responsibilities;  5.03 – Core Program Elements] and statutory provisions in the Archives and Records Act.

It is instructive to cite several key aspects of that policy document:

Section 6: “The Archives & Records Act stipulates that records of the provincial government cannot be destroyed or permanently removed from government custody without the development of records retention and disposition schedules or a one-time destruction order, approved in writing by the Public Records Committee.“ (p. 4).

“In requiring that records not be destroyed without proper authority, the legislation recognizes that those who work and make decisions in the public interest must be accountable for their actions and decisions. The saving of records is an essential component of accountability.” (p. 5).

Treasury Board Directives on the retention and/or disposition of government records are equally clear in establishing the importance of adhering to the objectives and intent of the legislation the provincial government had enacted to protect government documents (e.g., the Archives and Records Act): those directives leave absolutely no ambiguity, confusion or room for justifying “exceptions” to the established procedures regarding the disposition of government records, including the belief that certain records were not important or “retainable”. The decision to destroy provincial government records is legally reserved for one and only one person: the Provincial Archivist:

All information created by or supplied to government must be regarded as government records. As such, you are bound by the provisions of the Archives Act regarding disposal of information. No recorded information should be disposed of except in accordance with the procedures outlined in the Archives Act.” (p. 220) [My emphasis].

Given the existence of clear guidelines, policy documents, Treasury Board Directives and legislation, is it possible to explain the deletion of all e-gaming documents, including email accounts, from three of the key senior-level bureaucrats involved in e-gaming in such a way as to  find probable cause that Robert Ghiz and Neil Stewart did not attempt to commit mischief to data?

As already noted, the Archives and Records Act does not regard the improper or unauthorized destruction of government records a trivial matter, and therefore offers  unambiguous clarity regarding the prohibition of unauthorized document destruction:

19.1 Prohibition
(1) No person shall, with the intent to deprive a public body, the Public Archives and Records Office or the Provincial Archivist of the custody, control or use of, or access to, a public record, (a) destroy or damage a public record; (b) erase or remove information from a public record or make a public record illegible; (c) remove or conceal a public record from the public body or the Provincial Archivist; or (d) direct, counsel or cause any person to do anything mentioned in clause (a), (b) or (c).

And the punitive consequences for causing the unauthorized destruction of government records stipulated in the Act are severe, as a result of an amendment made in early 2017:

19.1 Offence and penalty
(3) A person who contravenes subsection (1) is guilty of an offence and liable on summary conviction to a fine of not more than $10,000.
Discipline, termination
(4) In addition to and apart from the sanction provided for in subsection (3), an officer or employee of a public body who contravenes subsection (1) may be subject to disciplinary action, up to and including termination from employment. 2017,c.60,s.18

The procedures that had been put in place – and were in place at the time Robert Ghiz and Neil Stewart ordered the destruction of e-gaming records – required the creation of detailed schedules (the “chain of command” for these procedures are outlined in detail later in this report).

And we know from answers provided to the members of the Public Accounts Committee by the Auditor General that the email accounts containing e-gaming records belonging to Chris LeClair, Rory Beck and Melissa MacEachern were destroyed and permanently removed from government custody without retention and disposition schedules first being prepared and approved.

Nor was there a one-time Destruction Order approved by the Public Records Committee. In fact, such was also the case for all types of e-gaming records for these three individuals, not just electronic records contained in email or other electronic storage accounts such as text-messaging accounts:

Ms. Compton: Thank you. Lastly, and moving on to 7.7, records retention schedules, they’re enshrined in our law and they are a legal requirement. You found that the Department of Innovation and Advanced Learning, Innovation PEI and the Department of Tourism and Culture all failed to have schedules as required by law? Jane MacAdam: Yes, we did note these three entities did not have records retention and disposition schedules, complete schedules on file. [Public Accounts Committee Transcript, February 15, 2017, p. 118].

It is not surprising to learn that there were no schedules, given the fact that neither of the two individuals responsible for ordering the deletion of e-gaming records (Robert Ghiz & Neil Stewart) were authorized to order those records deleted, as per consistent provisions in the Archives and Record Act; Treasury Board Directives; and Record Information Management (RIM) policies.

In fact, there is only one person authorized to delete records, as stated above, the Provincial Archivist; and there is also only one person designated within each department or public body who is legally authorized to provide records to the Provincial Archivist for disposition  – either by retaining them in archives, or deleting them. Treasury Board Directive 5.03 – Core Program Elements, outlines under section 2 (Recorded Information Management Designates) that one person must be designated in each department with the duty to manage records and liaise with the Public Archives and Records Office:

“It is imperative that one person in each department assume responsibility for all recorded information management functions within the department, regardless of type of system (centralized or decentralized) which exists. This person should be designated as the departmental Records Management Liaison Officer (RMLO).” [p.2]. [My emphasis].

This requirement is highlighted in all Records Management Policy documents of the provincial government, including the earlier referenced RIM policy regarding electronic records dated March, 2007

“A policy on retaining official records of the Government of Prince Edward Island has been adopted and is found in Treasury Board Manual, Section 5, “Recorded Information Management Policy”. This policy provides advice on how official records, including electronic records, should be maintained, controlled, and described in a way that allows them to be efficiently accessed, retrieved and interpreted. The Policy states that Senior Records Managers and Records Management Liaison Officers are responsible and accountable for the records in their care. (p. 4) [My emphasis]

That policy charges Records Management Liaison officers with the responsibility of ensuring all records are retained, noting several practical considerations associated with the challenges of retention of electronic records, and the necessity of safe transfer and storage practices:

“A major challenge for Department Records Management Liaison Officers is to guarantee that records maintained in electronic information systems are accessible and usable for the entire length of the retention period. Rapid changes and enhancements to both hardware and software compound this challenge. As many e-mail systems have limitations in storage space that cause operational problems when messages are stored in the system beyond a specific period (such as sixty or ninety days), procedures must be in place to transfer records from the e-mail system to another electronic record keeping system to meet retention requirements. Messages should be maintained in a format that preserves contextual information
(metadata) and that facilitates retrieval and access. (p. 1)

If it was the case that “one person” was not in place – for whatever reason (e.g., insufficient resource allocation; a recent departure of the designated person without a replacement, thereby creating a ‘gap’ in administration within the record management system in that department, etc.) – one might argue such circumstances could possibly constitute a mitigating factor for Robert Ghiz and Neil Stewart to have taken it upon themselves to order the destruction of government records. That was, however, not the case.

The AG gave Public Account Committee members the name of each of the Records Management Liaison Officers (RMLOs) for each of the three departments not providing any e-gaming records, and it was those RMLOs who were unable to provide e-gaming records to the Auditor General because they had been ordered destroyed by Ghiz and Stewart.

“Okay, so it was Sally Ferguson in the Department of Finance, Leah Eldershaw in Economic Development and Tourism, Don Larter in Transportation, Infrastructure and Energy and Shannon Burke. She’s a senior records delegate in Economic Development and Tourism.” [Public Accounts Committee, February 15, 2017, P. 118].

Neil Stewart’s illegitimate issuance of an order to destroy e-gaming records supplanted the legitimate authority of the designated Records Management Liaison Officers in these three particular departments.

I could not determine that the AG had also provided the name of the RMLO for the Premier’s office and Executive Council; however, the Record Information Management: Managing Electronic Mail lists the names of the Management Liaison Officers for each government department, and the name of the RMLO for Executive Council when Robert Ghiz became the Premier in 2007 was Rose Long. In other words, as was the case with Neil Stewart, Robert Ghiz clearly circumvented and supplanted the designated Record Management Liaison Officer’s authority within Executive Council when he ordered the destruction of the email accounts and e-gaming records of Rory Beck and Chris LeClair.

In addition, the Public Archives Act designates the Clerk of Executive Council as a member of the Public Records Committee – chaired by the Provincial Archivist – which has the following duties:

14. Duties of Committee
(1) The Committee shall (a) review records retention and disposition schedules submitted to it by a public body; (b) review procedures for the retention, preservation, destruction or alienation of records identified in a records retention and disposition schedule; and (c) approve records retention and disposition schedules. (p. 10)

The Premier is not a member of the Public Records Committee, so Robert Ghiz circumvented both the authority of the designated Records Management Liaison Officer for Executive Council and the Clerk of Executive Council when he ordered the deletion of the email accounts and other e-gaming records belonging to Rory Beck and Chris LeClair.

To be clear, the “chain of command” with respect to the manner in which the legal requirements for government record retention are protected in the administrative procedures and process within the PEI provincial government requires a four-step process:

(1) All employees are provided both guidelines and technical assistance to ensure that all records they receive and/or generate are retained for eventual disposition by the Provincial Archivist;

(2) The Records Management Liaison Officer in each government body or department liaises both with staff in that government body or department, and the Public Archives and Records Office (PARO).  Schedules must be completed for all records by the Records Management Liaison Officer – along with a transfer form which the RMLO signs – and forwarded to the PARO;

(3) Under the authority of the Archives Act, the Public Records Committee reviews, approves all schedules received from government bodies or departments and signs the Records Retention and Disposition Schedule as part of the consultative process. The Schedule only comes into effect when approved by the Public Records Committee.; and finally,

(4) Under authority of the Archives Act, the public records designated for retention or disposition are either “archived” or “destroyed” by the Provincial Archivist.  Again, the Act makes it clear that it is the Provincial Archivist, and only the Provincial Archivist, who has the legal authority to destroy government records – or, for that matter, the power and duty to decide whether government records are “retainable” and to be archived; or “deletable” and to be destroyed:

6.2  Destruction of records
(2) Subject to the terms and conditions under which records have been acquired or obtained, the Provincial Archivist may destroy or dispose of any record in the Public Archives and Records Office, where the Provincial Arl Archivist considers that it is no longer necessary to retain the record. 2001,c.28,s.6; 2017,c.60,s.5. Archives and Records Act.

The main reason for carefully laying out the legal and administrative framework which is in place within the PEI provincial government – which I have just done here  – is to show how several options were readily available to both Robert Ghiz and Neil Stewart to comply with the law.

For example, if the Record Management Liaison Officers were, for whatever reason, not available when Ghiz and Stewart believed it necessary to have records destroyed, they could have still contacted someone on the Public Archives Records Committee, or contacted the Provincial Archivist directly, given that it is highlighted in all record management policy documents, Treasury Board Directives and Legislation that only the Provincial Archivist has the legal authority to dispose of government records. As spelled out in the Treasury Board Directive regarding destruction of government records:

“Information, including open or public information and assets, must be destroyed in the manner outlined in the Recorded Information Management Policy which can be located at the provincial government Intranet site at http:/iis.peigov/. For information you should contact your department’s Records Management Liaison Officer.” (P. 220)

In light of a comprehensive overview of all the legislative, policy and administrative “checks and balances” in place at the time Robert Ghiz and Neil Stewart ordered e-gaming records destroyed, it becomes clear that a significant degree of premeditated planning was required for each of them to effect the destruction of those government records while at the same time circumventing the elaborate administrative and legal framework in place to prevent unauthorized destruction of government records, all of which gives rise to and establishes grounds to believe that those acts were carried out with mischievous intent.

3.2   The “scorched earth” nature of the orders to destroy e-gaming records

Opposition MLAs and media reporting on the e-gaming story have tended to focus on the deletion of the e-mail accounts containing e-gaming documents.  An internet search generates a long list of articles highlighting this fact; articles such as:  Emails deleted or disable?;  E-gaming emails deleted, text messages not provided to AG:     Name names on deleted PEI e-gaming emails, Steven Myers says; etc.

So it is important to recall that “all” e-gaming files, including paper and computer files, were destroyed for each of the three individuals who had their email accounts deleted.  In her report, the AG stated that she was informed that no e-gaming records of any kind existed for those three individuals:

“We requested information and were not provided with any email or other records for these individuals. So, we got nothing. We got no hard copies, we got no emails, we got no electronic records, or any records whatsoever, from these three individuals.” [Public Accounts Committee, February 15, 2017, P. 137].

As already noted, when the AG appeared before the Public Accounts Committee, she provided the names of the three senior provincial government officials from which she obtained no e-gaming records: Chris LeClair; Rory Beck; and Melissa MacEachern.

3.3   Preemptive Interruption of well-established protocols for record disposition

It is this last set of facts and circumstances which most clearly demonstrates reasonable grounds for the belief that the orders issued by Robert Ghiz and Neil Stewart to delete the email accounts and destroy all the  e-gaming records for Rory Beck, Chris LeClair and Melissa MacEachern were given with sufficient ill-intent to justify laying a criminal charge of an Attempt to Commit Mischief to Data, contrary to s. 430(5)(a) of the Criminal Code.

Pay close attention to the timeline in what follows. The available evidence also shows that the former Minister of Education – who is responsible for the Provincial Archives and Records Office – Hon. Doug Currie, and Premier Wade MacLauchlan, both mislead opposition MLAs and the general public concerning the deletion of email accounts and e-gaming records.

After the AG report on e-gaming was released on October 4, 2016, then-Minister of Education, Hon. Doug Currie, rose in the Legislative Assembly on December 1, 2016  to provide an answer to a question posed in an earlier session of the House regarding the government’s policy on retaining and deleting email records.  Here is a verbatim transcript of his response as it appears in Hansard for December 1, 2016:

“When an employee leaves the public service there’s a formal questioning. The IT Shared Services disable the email account. This is good business practice. Once an employee leaves there is no business need for them to access these accounts. At the same time it means the public is not mistakenly directing inquiries to former employees that would not receive a response. Even though the accounts are disabled, following the requests the records are backed up and stored for an additional year. Following that time the records are overwritten. This is a common practice that allows for space in the server and means the government is no longer paying license fees for unused accounts. As I stated, these actions follow a regular process as employees leave the system. Since 2007, when government implemented a system to track these actions, there have been 2,481 accounts disabled. This summer IT Shared Services updated its protocol so that [a] form requesting that account be disabled must include a signature stating that the employee’s records must first have been properly filed in accordance with the public archives and records act under my ministry. This will help ensure that all the email accounts have been disabled, that records have first been transferred or stored elsewhere.” [Hansard, December 1, 2016, P.1639] [My emphasis].

Minister Currie gave the very strong impression that prior to the summer of 2016 there was no procedure, policy or requirement in force to ensure that records in email accounts were, as he said,  “….properly filed in accordance with the public archives and records act under my ministry.”  Such was not the case.

Treasury Board Directive 5.03 was in force when Robert Ghiz and Neil Stewart issued orders to delete email accounts containing e-gaming records and were, in fact, deleted before the e-gaming records in those accounts were properly classified and disposed as per the policy and laws in place (either by being “archived,” if classified as retainable records; or “deleted,” if classified as non-retainable) by the Provincial Archive and Record Office staff and the Provincial Archivist.

The policy and procedures in place at the time already required a “signature”; however, the “signature” required was that of the Records Management Liaison Officer within the Department of the particular employee who left his or her employment, not the signature of an ITSS staff person. Information Technology Shared Services (ITSS) division of the provincial government had no formal role or authority in the provincial Record Information Management system, and are nowhere mentioned in either the Archives and Record Act or RIM policies:

“5.(e) Departments must complete a “Records Transfer Request” form (Attachment 5.03-III) available from the Public Archives and Records Office when arranging for the scheduled destruction of records directly from the office. This form must be signed by the departmental Records Management Liaison Officer.” [Treasury Board Directive 5.03: Record Information Management: Core Program Elements, p. 4].

In his December 29, 2016 year-end interview with CBC, Premier MacLauchlan responded to a question from CBC Compass Host Bruce Rainnie concerning a then-active disagreement between his government and opposition MLAs regarding the “status” of the missing e-gaming records from the email accounts [opposition MLAs insisted the AG had indicated they were “deleted” in her report, but the government was insisting the accounts had only been “disabled” in accordance with normal procedures when employees left government]. The Premier more-or-less reiterated what Minister Currie had earlier reported in the Legislative Assembly:

Speaking with Rainnie, MacLauchlan said the Opposition will get names if they keep pushing: 2,500 of them. “What was called ‘deleted’ were in effect closed accounts, so that’s how many there are,” he said.

Jane MacAdam did say in her e-gaming report that it is the normal retention and disposition policy of the PEI government for email accounts of employees who leave government to immediately have their accounts “disabled,” while ensuring to keep the records in those accounts in tact for at least one year, at which time the accounts are then overwritten and deleted; presumably, once all the records have been identified and classified as either records to be “archived” or “deleted” by the Provincial Archivist:

“When an employee leaves government, normal practice is to have the email account removed. We were advised by ITSS that after a period of one year, an account that has been removed cannot be recovered.  Consequently, if the employee does not manage his/her email records in accordance with policy, government records can easily be destroyed.” AG E-gaming Report, p. 41.

However, the AG also confirmed to the PAC members that Robert Ghiz ordered Chris LeClair’s email account “deleted” (not the account disabled) on October 19, 2011, just eight (8) days after Alan Campbell replaced him as Ghiz’s Chief of Staff.

Similarity, the AG confirmed that Robert Ghiz ordered Rory Beck’s email account “deleted” (not the account disabled) on September 4, 2012, less than five (5) months after he died suddenly of a heart attack on April 14, 2012

And the AG also confirmed that Neil Stewart issued an order to have Melissa MacEachern’s email account “deleted” (not the email account disabled) on October 21, 2013, six (6) months after her last day of work for the PEI government on April 19, 2013.

It appears that at no time did either Robert Ghiz or Neil Stewart contact or involve anyone from the Provincial Archives and Records Office.  The AG indicated it was the Information Technology Shared Services (ITSS) staff who received the orders from Robert Ghiz and Neil Stewart to delete the accounts, although she also indicated she didn’t know the date when the account-deletion actually happened, only the dates when the “orders” were issued by Ghiz and Stewart for those accounts to be deleted. (See p. 131, February 15, 2017, Public Accounts Committee Meeting Transcript).

The facts regarding Ghiz and Stewart issuing orders to delete the email accounts of these three key senior staff – without retaining any of the records – therefore contradicts what both the former Minister of Education, Doug Currie, and Premier MacLauchlan publicly stated in two ways:  (1) with respect to how normal procedures were followed (e.g., all three accounts were deleted long before a year had transpired from the date of the employee’s departure from government – in fact, it was just a few days in the case of Chris LeClair), and (2) with the nature of the action taken on the email accounts (e.g., “disabling” or “deleting”) with the facts showing that the email accounts containing e-gaming records were ordered “deleted, not simply “disabled,” as both Currie and MacLauchlan had insisted.

These facts relating to the timeline and administrative process culminating in missing e-gaming records clearly indicate that both Robert Ghiz and Neil Stewart made premeditated, focused decisions to interfere with the established procedures, laws and protocols regarding the retention and destruction of government records. They purposefully chose to contact ITSS staff, who had the technical skills to delete the email accounts, rather than anyone associated with the Provincial Archives and Records Office, or allow the designated Management Liaison Officers within their own departments to exercise her authority and responsibility for the records in the respective departments, as was required by the Archives and Records Act and RIM policies.

What remains unknown, however, are the details surrounding the destruction of hard copy e-gaming records, or documents on computer hard drives, mainframes or “cloud storage”.  The AG confirmed there were no records from these three key individuals, so those e-gaming records must have been deleted from their computer hard drives, mainframes, or cloud-storage systems.  It is reasonable to assume that Ghiz and Stewart likely also ordered those hard copy and hard drive records destroyed. But why?

The reasons for disposing, sorting, classifying and eventually deleting email accounts are obvious; some of which were mentioned by Doug Currie in the above December 1, 2016 citation from Hansard. But what would be the “benign” motivation to order the full-scale destruction of all e-gaming hard copy documents? The normal “out-of-sight out-of-mind” tendency is to forget about hard copy files in filing cabinets, once they are safely stored…not to seek them out and destroy them.  Destruction of electronic documents on computer hard drives, mainframes or cloud-storage systems raises even more questions, given that it is both easy, convenient and inexpensive to store records electronically.

And who did the destroying of hard copy and hard drive documents? Were hard copy documents shredded? If so, when were they shredded? Who deleted e-gaming files from hard drives, mainframes or cloud-storage systems? When?  Has anyone even asked provincial government employees these questions?

Many people believe there were reasons why senior government officials (and the Premier) would want e-gaming records destroyed, given the many irregularities associated with the entire failed e-gaming initiative. The Auditor General herself noted in her report that there were many irregularities, breaches of policies and procedures, and numerous occasions where laws were broken; and not only concerning the illegal destruction of government records, but also with the issuance of loans without legal authorization (monies which were eventually written-off as losses to the PEI taxpayers of approximately a million dollars).

Perhaps even more concerning is the AG’s finding that two of the three key bureaucrats whose email accounts had been deleted and e-gaming records destroyed had apparent conflicts of interest;

“We noted situations of apparent conflict of interest with two senior executives involved with these files, a former Chief of Staff, and a former Deputy Minister” (p. 3)

Again, it was later confirmed that the Chief of Staff she was alluding to in her report was Chris LeClair; and the former Deputy Minister was Melissa MacEachern.

Another former Deputy Minister, Tracey Cutcliffe, secured various contracts through a consulting company within weeks of leaving her position with government.  “Secrecy was the name of the game in the e-gaming scandal,” (Guardian, October 5, 2016).

Based on all the facts outlined above, there is clearly probable cause to believe Robert Ghiz and Neil Stewart Attempted to Commit Mischief to Data, contrary to s. 430(5)(a) of the Criminal Code.  For charges to have been laid, the RCMP would have had to have been provided all of the relevant information, as outlined above, showing probable cause for criminal intent. Unfortunately, neither the Auditor General nor the Attorney General initiated that investigation.  Why not?

 

4.   Why didn’t the Auditor General or Attorney General call for a criminal investigation of e-gaming ? 

Given what seems to be clear and convincing evidence of a “scorched earth” strategy to destroy all government e-gaming records with the key government staff involved in the e-gaming file, it remains puzzling why neither the Auditor General not the Attorney General of the PEI government asked the RCMP to conduct a criminal investigation into this matter.

Members of the Public Accounts Committee certainly believed the Auditor General had sufficient information to warrant her calling a public inquiry – or initiate a request for the RCMP to undertake a criminal investigation – and they challenged her to explain why she chose not to do so. Their questions, and her responses on this matter are worth presenting here, for reasons which will become clear subsequently:

But first, a brief caveat: As you may recall from information presented earlier in section 1 of this report, when the Information Commissioner with the Ontario government discovered that all records in the gas-plant file in the Minister’s office had been destroyed, she made the following statement in her report: “…it strains credulity that no one knew that the practice of deleting all emails was not in compliance with applicable records management and retention policies.”  The same thing could be said about the “scorched-earth” approach taken by Robert Ghiz and Neil Stewart regarding e-gaming email accounts (and other forms of e-gaming government records).  Not surprisingly, it was after PAC members heard the full scope of what had been destroyed that they asked the AG why either a public inquiry or criminal investigation had not been initiated:

Chair: Okay. I guess I’m just curious: Why did you [Auditor General) choose not to use your powers under the Public Inquiries Act to find out what happened to these missing records?

Jane MacAdam: As I indicate in the report – I think it’s in the introductory section – we gave it careful consideration, and based on the fact that there was a high probability that it could result in court proceedings. I mean, we consulted with our legal counsel as well in terms of the ramifications of using the powers under the Public Inquiries Act. It could have been costly. It could have dragged out for another year.

Chair: I might remind you it was already costly to the taxpayers of PEI too, though, right?

Jane MacAdam: Right. So it could have taken another year for me to be able to report, so given all the information that I had, I felt that it was important to report the results that we had and outline the scope limitations.     [GAP – unrelated questions]

Chair: I guess my last question would be: did you alert any justice officials, the Information and Privacy Commissioner or the RCMP that government records were missing and presumably destroyed in violation of the law?

Jane MacAdam: Would you read those names off again?

Chair: The Information and Privacy Commissioner or the RCMP or any justice officials here on PEI.

Jane MacAdam: Not the RCMP and not the privacy commissioner, but we did send a copy of our draft report to department of justice.

Chair: You didn’t send up any red flags that records were destroyed and the law was broken?

Jane MacAdam: The section of the report on records retention was shared with the Department of Justice.

Chair: What was the Department of Justice’s response?

Jane MacAdam: The points had been cleared with various senior people in government. They didn’t argue the facts. I presented the facts and they did not argue with the facts. They were aware.  [Public Accounts Committee, February 15, p.27]

At that time, the Minister of Justice was the Premier; and the Premier was also the Attorney General.  Opposition members and members of the public had raised concerns about this state of affairs, suspecting this apparent conflict-of-interest on the part of the Premier (who is both the Liberal successor to a former Liberal Premier Robert Ghiz, and Ghiz’s close personal friend) explained his refusal to call for an investigation by the RCMP.

When Premier MacLauchlan became aware that Robert Ghiz and Neil Stewart had illegally deleted sensitive government records, he refused to take any action to hold either of them accountable for breaching provincial statutory provisions of the Archives and Records Act , which, as noted above, unequivocally forbid the unauthorized deletion of public records and now calls for stiff penalties and consequences for employees guilty of committing such an offence (section 19.1 (3)(4) cited above).  In fact, less than a year after these revelations became public, the Premier appointed Neil Stewart Deputy Minister of Finance.

The illegal act of ordering the destruction of e-gaming records by Neil Stewart was not the only incident where Stewart “broke the law” with e-gaming: the AG also noted Stewart signed off on a loan of approximately a million dollars without proper authorization as required by the Financial Administration Act (AG E-gaming Report, p.23) and was just another example in a long history of non-compliance with government policies and laws by Stewart (See: “Premier Exercises Poor Judgment,” Guardian, October 26, 2017).

 

The Premier has at no time shown any interest in commenting on what happened under Robert Ghiz related to e-gaming, so it is perhaps not surprising that he neither pressed charges for breach of provincial statutes nor asked the RCMP to undertake an investigation into the e-gaming affair to determine whether any crimes had been committed.  The RCMP were likely aware that the Premier had no interest in going down that road when they were subsequently asked by then-leader of the NDP, Michael Redmond, to undertake a criminal investigation of e-gaming.

It should also be pointed out that the Liberal government held a majority vote on the Public Accounts Committee, and used that majority vote to resolutely refuse to allow key individuals – such as senior bureaucrats or Liberal Ministers at the heart of e-gaming – to be called before the committee for questioning, despite both the Progressive Conservative and Green Party opposition members on the committee repeatedly making those requests. Those MLAs have, not surprisingly, accused the Premier of stifling the work of the committee.

More recently, former Liberal MLA Bush Dumville (now sitting as an independent MLA) asked the Premier about his Chief of Staff, Robert Vessey’s (and the Premier’s lawyer, Spencer Campbell’s) interference with the Public Accounts Committee during the time the committee was holding meetings on e-gaming:

My question is to the Premier: During the strategy planning with Liberal members and others on January 6th, 2017, Robert Vessey stated: the Premier wants e-gaming put behind him. Next, Spencer Campbell stated, and I quote: We are the government lawyers on this file.

Question: Were you aware that legal counsel, Spencer Campbell, was in attendance and providing legal advice to the committee?” [Hansard, April 10, p. 1446]

The Premier’s answer?: “No I was not”.

5.   My interview with Sergeant Graeme Shaw of the RCMP Federal Crimes Investigation Unit

On April 24, 2018, I spoke with Sergeant Graeme Shaw with the Federal Crimes Investigation Unit of the RCMP who headed-up the e-gaming criminal investigation initiated by former Leader of the PEI NDP, Michael Redmond.

I identified myself as a freelance investigative writer, and told him I would soon be publishing the results of my own year-long investigation of e-gaming, and that I was focusing almost exclusively on the destruction of e-gaming records.

I began by saying how, in my opinion, the PEI e-gaming situation essentially “mirrored” the Ontario gas-plant situation, and asked him why David Livingston had been charged and found guilty of an Attempt to Commit Mischief to Data, contrary to S. 430(5)(a) of the Criminal Code in Ontario, while the RCMP investigation in PEI concluded there was no evidence of criminality, or grounds to lay any charges in the e-gaming case?  His answer:

Sergeant Shaw: “No, it’s very different. The case in Ontario and the information that’s provided here….the cases are very different. In Ontario there were items of specific intent by the people involved in it, towards which then became evidence towards the criminal charges. Here, there’s information.”

My response:  “Well they’re different in a lot of ways, but what seems to me to be essential in terms of both the substance and the intent…because in that case, there was a bit of a scandal, you know, over the gas plants, and there was a deliberate attempt to eliminate records in contravention of the Archives Act…”

Sergeant Shaw interjected and restated that he viewed the two cases to be completely different, so I then outlined a number of facts as reported by the Auditor General in her e-gaming report; facts that confirmed that the provincial law requiring records to be retained had been broken, and asked him how those facts didn’t constitute “evidence” as well as being “information”.  His response:

“I’ve read that report several times as well and it’s information as well, not evidence, right. It refers to…it refers to ya know, a mismanagement of data, mismanagement of email systems within the government that I hope they’re working towards improving upon, but it’s not in any way evidence towards, ah, ya know, a criminal offence.”

Finding his distinction between “information” and “evidence” confusing to say the least, I pressed the point:

Me:  “But why would they destroy such sensitive documents when the law says they have to be retained?”

Sergeant Shaw: “We look specifically at any evidence of criminal activity which requires specific intent which they ultimately had in Ontario, but which it was determined from our investigation was not present here.”

Still confused, I surmised that if the RCMP didn’t find that the records that were required to be legally retained had not been destroyed with “intent”  well, there had to be some other explanation, so I asked:

Me: “So you’re conclusion was that they were deleted accidentally?

Sergeant Shaw: “No”.

Me:  “Because of some protocol that was perhaps misread?”

Sergeant Shaw:  “I’m not certain what the mechanism….I’m not sure what the mechanism was, ya know specifically, for them to be, whatever information to be deleted.”

Me: “But why would they destroy such sensitive documents when the law says they have to be retained and in fact they were compelled to allow that decision to be made by the Archivist and…”

Sergeant Shaw: “…the provincial government have standard operating procedures and things that I’m not privy to, I don’t know how the government works, but where they keep things for certain periods of time, they retain certain stuff, but you can’t’ keep everything all of the time…”

My interview with Sergeant Shaw made me realize that in the course of their investigation, the RCMP failed to appreciate exactly how the retention and disposition of sensitive government records actually works within government.

His statement:  “you can’t keep everything all of the time,” sounded like a justification for the deletion of e-gaming records, which represents a mistaken assumption regarding record keeping within the provincial government.  Such a lack of understanding would clearly have prevented the RCMP from making a proper assessment of whether probable cause exists to believe Ghiz and Stewart acted with criminal intent.

When records are deemed “retainable” by the Provincial archivist, they are kept for perpetuity, and the e-gaming records (or certainly most of them) would have met the criteria for being assessed as “retainable” records by the Provincial Archivist.  Again, and this can’t be overstated, the lack of knowledge by the RCMP investigator concerning the record management laws, procedures, policies and protocols within the provincial government would have made it impossible for them to render a fair and informed decision regarding whether it is reasonable to believe that Ghiz and Stewart committed the crime of Attempting to Commit Mischief to Data. The fact that they breached virtually every aspect of the established laws and policy to get rid of every e-gaming record – long before the mandatory one year retention had transpired – clearly represents a “scorched earth” strategy surpassing even that of David Livingston in the gas-plant scandal in Ontario.

I believe this revelation alone constitutes sufficient grounds to trigger a new criminal investigation into this matter. However, I also believe this report provides sufficient  facts, analysis and argument to warrant criminal charges being laid without any further investigation – a fuller disclosure of the facts will likely only happen in a court of law where the key players in the PEI e-gaming affair are compelled to offer sworn testimony under oath –  something that has not yet happened.

6.  Conclusion

I find Sergeant  Graeme Shaw’s distinction between “information” and “evidence” to be meaningless and confusing.  The issue at the heart of the e-gaming records is not one of semantics, it is one of “intent,”  as Sergeant Shaw correctly stated.

To ascertain a probable case of criminal intent sufficient to warrant laying a criminal charge, it is first necessary to understand –  in the most comprehensive way possible – all the attending circumstances that established the boundaries for action, the available information which the person who “acted” was privy to regarding laws, policy, procedures, work expectations,  duties, limitations regarding the authority to act, etc.

When the action under investigation is “the deletion of sensitive government records” and the investigator candidly admits that “…the provincial government have standard operating procedures and things that I’m not privy to, I don’t know how the government works,” then a finding that there was no evidence of any intent to commit a crime essentially represents an admission of ignorance of the relevant facts required to make a determination regarding intent.

In other words, if there was in fact reasonable grounds to believe there was intent to commit a crime (which I believe is contained in this report) it would not have been identified as such by the RCMP, given the admitted ignorance about the very context and environment within which that possible crime would have taken place which would have precluded such identification.

In conclusion, my review of the facts, especially as outlined above in sections 3.1, 3.2, and 3.3, offers sufficient reasons to believe that Robert Ghiz and Neil Stewart acted with mischief, or at least sufficient probable cause to warrant one criminal charge of mischief to data be filed against each of them.

As with all allegations of legal wrongdoing, it remains the prerogative of a judge (or jury) to ultimately “test” that charge within the parameters of a criminal trial, where those accused are afforded an opportunity to put forth a defence to prove their innocence, while the Crown puts forward a case for the judge (or jury) to support the belief that the act was commissioned with an intention to commit the alleged crime.

As I’ve already noted earlier in this report, many questions remain unanswered: questions such as those regarding the whole-sale deletion of all e-gaming records, including hard copy documents. Those questions will likely only be answered in a trial.

If Robert Ghiz and Neil Stewart are innocent, evidence proving that will undoubtedly come out in a trial; if they are guilty, as David Livingston was found to be in the gas-plant case in Ontario, that too will likely come out in trial.

A trial will finally provide answers to the many questions still being asked by Islanders regarding the costly, failed e-gaming initiative and remove the cloud of suspicion that presently hangs over the heads of both Neil Stewart and Robert Ghiz.

++++++++++++++++++++++++++++++++++++++

APPENDIX “A”

SUPPLEMENTAL INFORMATION ON MOTIVES FOR CRIMINAL INTENT

As is well known, Capital Markets Technologies Inc. (CMT) is presently engaged in a civil litigation action seeking damages it alleges resulted from a breach of the terms of an MOU it had with the PEI government.  The merits of CMT’s allegations have yet to be tested in court, although the judge recently ruled in favour of a Motion filed by CMT to add additional names to the case, largely based on revelations from the Auditor General’s report. There are now 16 named defendants in the action including Robert Ghiz, Neil Stewart, Chris LeClair, and Melissa MacEachern.

The Plaintiff’s Responding Motion  contains information based on documents submitted as evidence relating to the destruction of e-gaming records which is of interest and relevance to my report.  I am not including this as part of my “argument” in support of the belief there is sufficient evidence to warrant a criminal charge being laid against both Robert Ghiz and Neil Stewart; however if the allegations outlined in this motion are eventually proven in court, it is easy to see how criminal intent may have fueled Ghiz’s and Stewart’s decisions to order the destruction of e-gaming records.

85. DESTRUCTION OF EVIDENCE

86. Spoliation or destruction of evidence is an act of commission conducted for a purpose. The rebuttable presumption of fact is that destroyed evidence would not assist the spoliator and therefore the evidence was destroyed.

87. In this case the onus of reversing the presumption is on Ghiz and Stewart. All that the
plaintiffs can do at this time, since the evidence has been destroyed, is attempt to make
logical and reasonable inferences.

88. October 19, 2011 Ghiz Spoliation of LeClair Emails

Inference: Ghiz ordered destruction of the LeClair’s emails to hide from public view the fact that LeClair after his forced resignation set out to destroy the Financial Services Platform and promote an alternative business service platform designed to enrich Ghiz, Sheridan and LeClair personally.

Inference: Ghiz and LeClair never stopped their activities to destroy the Financial
Services Platform and promote an alternative business service platform through the
service of LeClair as an outside consultant employed by Policy Intel with favoured PEI
Government contracts.

Inference: LeClair became that principal contact with Newcourt/Newco and Laslop, the
proposed replacement for the Simplex Financial Services Platform, and attempted to hide from public view the names of Newcourt/Newco and Laslop by misusing of section 15.(1) of the Freedom of Information and Protection of Privacy Act.

Inference: Ghiz and LeClair, knew or should have known from the very beginning, that
Sheridan was prepared to issue false statements and Sheridan in order to “win” would
attempt to destroy other persons reputations with a series of false statements.

89. September 04, 2012 Ghiz Spoliation of Beck Emails

Inference: Ghiz ordered  destruction of the Beck’s emails to hide from public view the fact that Beck was involved in the E-gaming initiative (Sheridan initiative) from the very beginning as Clerk of the Executive Council and Secretary to the Cabinet.

Inference: Ghiz ordered destruction of the Beck’s emails to hide from public view the fact that Beck favoured the Financial Services Platform and that Beck was involved in the Loyalty Card Program (MacEachern initiative) from the very beginning as Clerk of the Executive Council and Secretary to the Cabinet.

Inference: Ghiz ordered destruction of the Beck’s emails to hide from public view the
direct involvement of Sheridan, Roach and Paynter in the breach of the MOU when these
individuals dealt directly with Newcourt/Newco and Laslop.

90. October 21, 2013 Stewart Spoliation of MacEachern Emails

Inference: Stewart ordered destruction of the MacEachern’s emails to hide from public
view the fact that MacEachern strongly favoured the Financial Services Platform to
promote the Loyalty Card Program.

Inference: Stewart ordered destruction of the MacEachern’s emails to hide from public
view the direct involvement of MacEachern, Paynter, Dow, and Cutcliffe in the breach of
the MOU when these individuals dealt directly with Newcourt/Newco and Laslop.

Inference: Stewart ordered destruction of the MacEachern’s emails to hide from public
view the fact that Ghiz ordered Stewart to assume the carriage of the destruction of the
Maceachern in an attempt to protect the reputation of Ghiz.

 

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Criminal Proceeding Initiated Against Robert Ghiz

Ghiz at Provincial CourtOn June 20, 2018, I filed two sworn “Informations”  in the PEI Provincial Court: the first document alleges that the former Liberal Premier of Prince Edward Island, Robert Ghiz….

Did commit mischief in relation to data by wilfully without legal justification or excuse and without colour of right, destroying data to wit, emails, email attachments, and [the] email account of his Chief-of-Staff, Chris LeClair, contrary to s. 430(5)(a) of the Criminal Code of Canada.

The second document alleges that Robert Ghiz….

Did commit mischief in relation to data by wilfully without legal justification or excuse and without colour of right, destroying data to wit, emails, email attachments, and [the] email account of the Clerk of the Executive Council of the PEI government, Rory Beck, contrary to s. 430(5)(a) of the Criminal Code of Canada.

This filing initiated a Private Criminal Prosecution, which is authorized under section 504 and 507.1 of the Criminal Code of Canada. 

Five days after my filing [June 25, 2018] Chief Judge of the PEI Provincial Court, Nancy Orr, issued a memo to all Provincial Court staff, Justices of the Peace and Provincial Court Judges re: Private Prosecutions – Criminal Code of Canada, explaining the process and procedural rules governing private prosecutions.

In a nutshell, after a sworn “Information” is filed with the Provincial Court laying out the details of the alleged offence, the informant [private prosecutor] must then provide the Justice of the Peace with the names, addresses and telephone numbers of witnesses whose evidence will be relied upon at a subsequent hearing with a Provincial Court Judge.  The Judge will then decide whether a criminal prosecution should be initiated.  Chief Judge Orr explains the nature and purpose of that hearing – referred to as a pre-enquete – in her memo:

The pre-enquete is an in camera and ex parte hearing involving only the informant and his or her witnesses, and the Crown and its witnesses, if any.  This means it is not open to the media or the public and the accused is not at the hearing. The onus is on the private informant to establish that a summons or a warrant should be issued to compel the accused to answer the charge.

If the Judge decides a summons or a warrant should be issued to compel the accused to answer the charge [referred to as “issuing process”] a trial then ensues, which the informant/private prosecutor may conduct:

If the Judge issues process, the private informant can take the matter to court and conduct the prosecution. The Crown is not required to take on any specific role to assist the private informant.

However, if the Judge issues process, the Criminal Code of Canada authorizes the PEI Attorney General [Hon. Jordan Brown] to intervene in the action and effectively “take over the case”.  As Chief Judge Orr explains in her memo:

If the Attorney General determines it is in the interests of justice to intervene, the Attorney General may take over the prosecution and continue or terminate it as he or she considers appropriate.

Once I submit a form indicating the names and number of witnesses I intend to bring to the Pre-Enquete hearing – which I intend to do early next week – the Attorney General [Crown] will then be given a copy of each of the two Informations, and will be provided reasonable notice of the date for the hearing by the Court.   The Crown can attend the hearing, cross-examine my witnesses or call its own witnesses.

Will the Attorney General allow a Judge to decide whether a trial should happen?

As a member of the Public Accounts Committee looking into e-gaming, Hon. Jordan Brown, along with his Liberal Colleagues on the committee, used their majority Liberal status on the committee to repeatedly vote down motion after motion – from opposition MLAs on the committee – designed to bring key e-gaming players before the committee: Individuals who could have answered important questions about the e-gaming affair.  Although he wasn’t at the time Attorney General – those committee meetings were held late 2016 til March, 2017, and Jordan Brown was appointed Attorney General in January, 2018 – nonetheless, as a result of Brown’s refusal to investigate the matter thoroughly at that time, many of those questions remain unanswered.

Likewise, both Premier MacLauchlan and Attorney General Brown refused to answer questions PC Justice Critic Jamie Fox asked in the Legislative Assembly based on my investigative report into the destruction of e-gaming records.  Despite the fact that Fox informed the Premier and Attorney General that the RCMP had candidly admitted to me during an interview that they didn’t understand the record management laws, procedures, policies and protocols within the provincial government  – which would have made it impossible for them to determine whether reasonable grounds exist to believe that Robert Ghiz committed the crime of Attempting to Commit Mischief to Data –  their only response was that the Liberal government had confidence in the outcome of the RCMP’s e-gaming investigation finding no grounds for criminal charges.

At no time has anything that either the Premier or Attorney General said or done regarding e-gaming suggested either have any interest in discovering more about what really happened with the e-gaming file, the destruction of e-gaming records, or whether there are, in fact, reasonable grounds to believe criminal offences were committed.

Given this situation, it is somewhat unnerving to realize that the PEI Attorney General can issue a Stay of Proceedings at any time  – even before a pre-enquete hearing is held giving the opportunity to a Judge to hear evidence for the alleged charge against Robert Ghiz to decide if a trial is warranted. As Chief Judge Orr explains:

The role of the Crown is set out in the Criminal Code and in particular section 579 of the Criminal Code provides that the Attorney General or an instructed agent may direct a stay of proceedings at any time after an information is laid. This can be done before the commencement of the pre-enquete or at the commencement of the pre-enquete or at any time after.

I find this uncontested power of the Attorney General troubling, given that the principal reason why private prosecutions [which have a long history in many other jurisdictions based on the Common Law System] are even permitted under the Criminal Code of Canada is to allow citizens to address  situations where the crown has shown an unwillingness or reluctance to pursue criminal charges – despite the existence of evidence warranting the laying of a charge – as a result of possible conflicts of interest, political interference, corruption, etc.  As the authors of “Private Prosecutions: A Potential Anti-corruption Tool in English Law” explain:

By allowing prosecution when the state chooses not to act, private prosecution may offer particular opportunities in combating corruption, when the criminal actor is part of the state, and state actors may be reluctant to bring cases.

Although the PEI Attorney General can issue a Stay of Proceedings at any time after a private prosecution “Information” has been sworn and filed, he cannot actually assume control of the legal proceeding – or withdraw the action – until after the private prosecutor’s pre-enquete hearing.  As outlined in the Guideline of the Director Issued under the Director issued under Section 3(3)(c) of the Director of Public Prosecutions Act:

Crown counsel may intervene to take over the prosecution or withdraw a charge only after the court makes an order issuing process. Crown counsel may, however, enter a stay at any time after an information is sworn.

Will the Attorney General file a Stay of Proceedings?

Given that I have already sworn and filed Informations, and a criminal proceeding has commenced, the Attorney General could potentially issue a Stay of Proceedings before I even have an opportunity to present evidence to a judge.  But what would possibly motivate the provincial government to act to prevent the judge from considering evidence and deciding whether a trial should ensue?

One legitimate reason why a stay is sometimes issued is to provide the Crown with additional time to undertake its own investigation of a matter.  That is what I was hoping would be the outcome of my own investigative research and report – to have the completed RCMP investigation reopened, or to spur the provincial government to take action along the lines of what was suggested by Jamie Fox in the Legislative Assembly, e.g. to bring in a third party investigator (such as the OPP) to revisit the matter.

Given that neither the Crown nor the RCMP have shown an interest in undertaking any further investigation of the matter since my report was tabled in the Legislative Assembly, if the Attorney General was to offer such a reason for issuing a stay, it would be both pretentious and unbelievable.

If the Attorney General issued a Stay of Proceedings before a hearing could be held, it would be universally regarded by Islanders as an attempt to prevent the matter from being fairly considered by a judge.  Given that outcome, I honestly don’t believe the Attorney General would authorize such a heavy-handed attempt to thwart a legitimate legal process.

Will the Attorney General Intervene in a Criminal Prosecution?

A criminal “proceeding” commences when an Information is laid; a criminal “prosecution” commences when a judge decides – following a pre-enquete hearing – to issue a summons, or an arrest warrant, to compel the accused to appear in court to answer a criminal charge.  As noted above, the Attorney General can “intervene” and assume control of the prosecution only after the judge decides to commence a prosecution.

Given the appearance of at least a potential conflict of interest with the Attorney General and PEI Provincial government – in that the current Liberal government would be assuming control of a prosecution against a previous Liberal Premier – I believe it would be unwise for the Attorney General to personally involve himself in this matter or direct the Crown to intervene and assume control of this private prosecution, especially if the intent was simply to withdraw the prosecution.

According to the Guidebook of Policies and Procedures for the Conduct of Criminal Prosecutions in Prince Edward Island,

The Attorney General will rarely intervene in the carrying out of day-to-day operations of the prosecution function so as to avoid any suggestion of political interference. [P. 1-1]

AND:

Although the Attorney General can become involved in decision-making in relation to individual criminal cases, such practice would leave the Minister vulnerable to accusations of political interference. Accordingly, it is traditional to leave the day-to-day decision-making in the hands of the Attorney General’s Agents (the Crown Attorneys). [P 3-2].

If this is true for regular prosecutions initiated by the Crown; it is obviously even more important that the Attorney General recuse himself completely from this case and not issue a directive to have the Crown intervene in this private prosecution alleging a criminal charge against a former Liberal Premier.

Let’s assume that no Stay of Proceedings is issued by the Attorney General prior to a pre-enquete hearing, and that the judge then decides that a prosecution is warranted. What might constitute “legitimate” grounds for the Crown to intervene and assume control of the prosecution?  Luckily, the guesswork has been eliminated with this question, since those grounds are clearly articulated in the  Guideline under the Director issued under Section 3(3)(c) of the Director of Public Prosecutions Act.

Essentially there are two broad “categories” of reasons why the Crown would intervene: one pertaining to the nature of the prosecution itself; the other pertaining to the private prosecutor.

In the first instance, the motivation to intervene and take charge of the prosecution is to “stop it,” when explicit factors exist that are likely to damage the interests of justice [as Chief Judge Orr indicated] requiring the Crown to intervene to end the process. They are outlined as follows:

• the prosecution interferes with the investigation of another criminal offence;

• the prosecution interferes with the prosecution of another criminal charge;

• Crown counsel is satisfied that the private prosecution is vexatious or being undertaken on malicious grounds; and

• the prosecuting authorities have given the defendant a promise of immunity from prosecution.

However, none of the above factors are at play in the criminal proceeding I have initiated, and I can think of no other legitimate reasons why the Attorney General would not want a trial to proceed if a judge was to determine that the evidentiary standard to warrant a prosecution was met in this case.

Regarding the second category of considerations regarding whether to intervene and assume control of the prosecution, the Desktop Manual offers the following:

If it is determined that the charge is well founded, Crown counsel must then decide whether to assume conduct of the prosecution. The issue must be decided on a case-by case basis. Normally, there is nothing wrong in allowing a private prosecution to run its course through to a verdict. There is no requirement for the DPP [Director of Public Prosecutions] to take charge of the prosecution. The following considerations will help to inform Crown counsel’s decision whether or not to take charge of the prosecution:

1. the need to strike an appropriate balance between the right of the private citizen to initiate and conduct a prosecution as a safeguard in the justice system, and the responsibility of the Attorney General of Canada for the proper administration of justice;

2. the relative seriousness of the offence – generally, the more serious, the more likely it is that the DPP should intervene;

3. there are detailed or complex disclosure issues to resolve;

4. the prosecution requires the disclosure of highly sensitive material or the conduct of the prosecution involves applications for special measures or for witness anonymity;

5. there is a reasonable basis to believe that the private prosecutor lacks the capacity or the funding to effectively carry the case forward to its completion;

6. there is a reasonable basis to believe that the decision to prosecute was made for improper personal or oblique motives, or that it otherwise may constitute an abuse of the court’s process such that, even if the prosecution were to proceed, it would not be appropriate to permit it to remain in the hands of a private prosecutor;

7. given the nature of the alleged offence or the issues to be determined at trial, it is in the interests of the proper administration of justice for the prosecution to remain in private hands.

Again, given the optics and potential conflict of interest in this criminal proceeding, the #7 consideration is of particular significance. This particular Criminal Code Crime [Mischief to Data], although an indictable offence, is not a serious charge (e.g., “murder”); there aren’t any detailed or complex disclosure issues; the decision to lay a charge was not made for improper reasons; and the private prosecutor in this case has considerable past experience both initiating and conducting various types of legal proceedings.

Since publishing my Investigative Report into the Destruction of E-gaming Records, I have heard from a number of lawyers – from both on and off PEI – who have told me they believe my report provides reasonable grounds for the laying of charges.  One retired head of a major law firm told me he was shocked that it hasn’t triggered the reopening of the RCMP investigation, or action by the Attorney General.

I would not have initiated this Private Prosecution if I had not been encouraged to do so by people who are themselves legal experts….my initiative may not result in a trial, but this action is neither frivolous or vexatious.

As previously noted, I intend to file a document naming witnesses for the pre-enquete early next week. I will be shocked and extremely disappointed if the Attorney General issues a Stay of Proceedings preventing the hearing from taking place.

If the judge conducting the hearing decides that the two-fold evidentiary test [(1) there is a reasonable likelihood of conviction and (2) the prosecution best serves the public interest] is not adequately met by the evidence I provide, then I will respectfully accept that outcome and that will be the end of the matter.

However, if the judge believes the evidentiary test is met by the evidence I provide and issues process –  then I would expect the Attorney General and/or his agents to allow me to proceed with the conduct of the prosecution.

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