No Justice with Destruction of E-gaming Records

I recently published an investigate report titled “Did Robert Ghiz and Neil Stewart commit a crime? An Investigative Report on the destruction of e-gaming records.” Jamie Fox tabled my report in the Legislative Assembly on May 22, and directed a series of questions to the premier based on my report, which the premier refused to answer, saying repeatedly that the RCMP investigation into e-gaming found no grounds for criminal charges.

However, my report offers a significant amount of new information warranting a criminal charge against both Ghiz and Stewart for “Attempting to Commit Mischief to Data,” contrary to s. 430(5)(a) of the Criminal Code.

I obviously can’t reproduce my entire report here, so I’ll share just a couple of revelations which may inspire you to read the 35-page document.

After the PEI Auditor General released her e-gaming report, opposition MLAs questioned government about the policy governing the retention and destruction of e-mail accounts for employees leaving government. On December 1, 2016, Hon. Doug Currie informed the Legislative Assembly that: “Even though the accounts are disabled the records are backed up and stored for an additional year.” Premier MacLauchlan provided this same explanation in both his CBC and Guardian 2016 year-end interviews.

Islanders were misled: Robert Ghiz and Neil Stewart ordered the email accounts of senior government employees involved in e-gaming destroyed long before a year had transpired. In fact, Ghiz ordered his chief-of-staff, Chris LeClair’s email account destroyed just 8 days after he was replaced by Allan Campbell.

Premier MacLauchlan has repeatedly stated that inadequate procedures resulted in lost government records, announcing “robust” plans to fix those problems. This was not the case: clear, consistent and comprehensive document-retention policies and procedures were in place at the time Ghiz and Stewart ordered the destruction of e-gaming records.

In fact, two months prior to Ghiz’s election in March, 2007, the Public Archives and Records Office issued a new policy document titled: “Record Information Management: Managing Electronic Mail” outlining strict guidelines and procedures for classifying, storing, and retaining electronic documents. One person was designated as the Records Management Liaison Officer (RMLO) within each department with exclusive responsibility for ensuring government records were properly forwarded to the only person within government with the legal authority to destroy documents, the Provincial Archivist.

Ghiz and Stewart circumvented the RMLOs in their respective departments, ordering IT staff to destroy email accounts before those electronic e-gaming records could be archived. Why didn’t RCMP officers discover this essential fact? Because understanding and examining provincial government document-retention policies and procedures wasn’t part of their investigation.

I asked RCMP Sergeant Graeme Shaw overseeing the investigation about the destruction of e-gaming records and he candidly admitted: “The provincial government have standard operating procedures and things that I’m not privy to. I don’t know how the government works.” That makes a credible determination regarding whether criminal “intent” existed with the illegal destruction of e-gaming documents by Ghiz and Stewart, in contravention of the provincial  Archives Act, impossible.

My finding that criminal intent existed relies on the same assessment criteria found in a remarkably-similar case recently adjudicated in Ontario – where former chief-of-staff, David Livingston was found guilty of an “Attempt to Commit Mischief to Data” for illegally destroying government records in contravention of Ontario’s provincial Archives and Records Act.

Although I’m sure the RCMP did the best job possible with the information they were provided by the MacLauchlan government, I’m hoping my report will prompt a thorough reexamination: it’s not unusual for investigations to be re-opened as new information comes to light. I also trust that the RCMP would be keen to dispel any suspicions of political interference by providing a clear rationale for whatever decision they ultimately reach in a re-opened e-gaming investigation. As it stands, a growing number of Islanders who have read my report are saying that what constitutes a “crime” in Ontario is apparently just “business-as-usual” in PEI. That’s unacceptable.