The most glaring example of blatant bias in Judge Campbell’s ruling, in my opinion, is his refusal to properly address both the “facts” and the “law” relating to CMT’s claims of “spoliation” of PEI Government documents by former Premier Robert Ghiz and Deputy Minister of Innovation and Advanced Learning, Neil Stewart.
It’s also one of the most glaring examples of an unscrupulous and blatant betrayal by the King Government in this whole affair.
I’ll be honest. I find this particular betrayal by the King Government one of the most difficult to write about because the facts and legal arguments have already been so well established, and should have resulted in Robert Ghiz and Neil Stewart serving jail sentences by now.
That’s exactly what happened when the Chief of Staff for former Ontario Premier Dalton McGuinty, David Livingston, deleted government records from a harddrive: he served 4 months in jail. Ghiz and Stewart wiped out all the records in every possible format, BlackBerry Messages on Government-issued devices; Text Messages, Emails, Electronic files on network drives, laptops, desktops, paper files….EVERYTHING!
What makes this PC flip-flop especially shocking is that by the Spring of 2017 the PC Caucus was not only convinced that Ghiz and Stewart had destroyed records illegally, but by early 2018 had come to believe there were sufficient grounds to believe that both Ghiz and Stewart had committed a “crime”.
Based on the new documentary evidence I had uncovered and published in a report, which the PCs tabled in the House, they demanded Premier Maclauchlan initiate a criminal investigation into the matter. That will be my next episode, with a couple of short clips from then PC Justice Critic, Jamie Fox.
This post (with two video clips in the final section from Myers from the Spring, 2017) shows that by the Spring of 2017 – after more than a dozen Public Accounts Meeting on E-gaming – there was absolutely no doubt in any PC MLA’s mind that Robert Ghiz and Neil Stewart had illegally deleted important government records. The PC MLAs made strong statements time and again in the House during that Spring sitting calling for such acts of document destruction to carry severe consequences. At a minimum a heavy fine and LOSING one’s employment; and possibly, depending on circumstances, criminal prosecution.
Note: Premier King recently appointed (this was not, to my knowledge, announced publicly) Neil Stewart to a Senior role within the Department of Economic Growth, Tourism and Culture:
1. KEY ISSUE – DESTRUCTION OF GOVERNMENT RECORDS
The Auditor General made it abundantly clear in her e-gaming report that PEI Government law and policy make it illegal to destroy government records, or to direct ITSS to delete records, without first backing those records for proper disposition by the Provincial Archivist:
Section 7.11: We noted instances where the e-mail accounts of senior government officials, who were key participants in the E-gaming initiative and/or the establishment of a financial services platform, were removed after leaving government. We requested information and were not provided with any e-mail or other records for these individuals. We concluded that government records existed at one time in these e-mail accounts because we received relevant government records from other public bodies and sources external to government that should have been retained in accordance with legislation and policy.
The AG elaborated on the broad “scorched earth” nature of the destruction of the e-gaming records belonging to Chris LeClair; Rory Beck and Melissa MacEachern at the February 15, 2017, Public Accounts Committee Meeting:
Public Accounts Committee Chair: Right. I guess I just fail to understand why someone is not being taken to task because all correspondence from these individuals was essentially expunged, it disappeared, whether it was deleted as an email or it was taken out to a shredding machine, that none of these records were available to be given to the Auditor General who is directed by the Premier of Prince Edward Island to do a thorough audit of this file.
Jane MacAdam: Yeah, it was concerning for sure, and that’s why it’s in the report. We did not get any records for these individuals from the relevant public body. Like I said before, we got the other end of some emails that were given to us from other sources, from other public bodies or sources outside government. [Public Accounts, Feb. 15, 2017, p. 137].
Both Minister Doug Currie and Premier MacLauchlan misled the Legislative Assembly and all Islanders by saying that the records and email accounts were removed in the normal course of business. However, after hearing from ITSS experts, the Provincial Archivist, and the Auditor General many times at Public Accounts meetings over the winter of 2016/17, by the time the House opened in the Spring of 2017, every PC MLA knew full-well that the deletion of LeClair’s, Beck’s and MacEachern’s files was not something executed in the “normal” course of business, but were deliberate and “illegal” acts for which there should be legal consequences in a court of law.
2. JUDGE CAMPBELL ON DESTRUCTION OF GOVERNMENT RECORDS
With such overwhelming evidence of illicit behavior in the destruction of records, it’s truly amazing that Judge Campbell found that the ridiculous testimony of both Ghiz and Stewart, in their sworn statements on the matter, [statements they made that totally excused themselves of having done anything wrong of course] is indefensible.
Only Supervisors can authorize the destruction of records, and in this case, both the supervisors of Chris LeClair (Ghiz) and Melissa MacEachern (Stewart) did exactly that – without first copying the records which they’re legally required to do. That’s against the law, but that fact was apparently of no consequence to Judge Campbell.
As far as the evidence provided by the Auditor General on this matter is concerned, I’ve dealt with that in detail in previous articles, and how Judge Campbell misreads what she says and cherry-picks one sentence in section 7 out of context. How Judge Campbell justifies ignoring the several references by the AG regarding the legal requirement to copy all Government records for the Public Archivist before deleting them is inexcusable.
Both Ghiz and Stewart were acting in their authority of being supervisors when they signed those ITSS orders to delete the files and emails, and both also had obligations and duties under the Act. The AG was very clear about all of that; however, if Judge Campbell had consulted the law and policies in effect within Government at the time, he would have immediately realized that what Ghiz and Stewart did was illegal, and possibly criminal.
At no time did the Auditor General ever say – as Campbell strongly suggests by what he cites from her and what he leaves out – that what Ghiz and Stewart did was a “normal” course of action for Government when employees leave the government.
3. KING GOVERNMENT ON DESTRUCTION OF GOVERNMENT RECORDS
In the Response to CMT’s Appeal filed with the PEI Court of Appeal, the King Government has adopted exactly the same position on the destruction of records as that of Judge Campbell. In a very discouraging flip-flop, the King Government has now abandoned everything it previously stated and absolutely knows to be true. They knew THEN that those records had been deleted illegally – and likely “criminally” as well – and that they were to be copied for the Provincial Archives, and handled by the Departmental Records Management Liason Officer. None of that happened. That records are to be copied for disposition by the Provincial Archivist – that’s what was normal practice.
In the Appeal filing, the King Government not only argues against what the PC MLAs previously argued in the House, it adopted Campbell’s insulting (and unethical in my opinion) “misreading” of what the AG said about document deletion to suggest (as Campbell had done) that what Ghiz and Stewart did with those records was “normal practice”. Paragraph 252(d) of the Government’s filing makes the following statement:
A little further in the Response to CMT’s Appeal, both Ghiz and LeClair are completely excused as having done nothing wrong by the King Government, but simply did what they believed they were supposed to do with the emails and files of former employees:
For the PC Government to have filed such shameful statements in Court after everything they previously said in the Legislative Assembly amounts to a betrayal of both the truth, those hurt by the coverup and denial of the truth, and the people of PEI. How else can it be understood?
To wrap up, watch and experience what certainly seems to be a sincere and passionate response to the Government’s plan to amend the Archives Act delivered by Steven Myers – on behalf of the PC Caucus – about how Ghiz and Stewart should have been treated for what they did to government records in a bid to keep the e-gaming and financial transaction platform scandal and coverup secret. As he stated so cogently back THEN, Islanders are sick of the corruption and coverup.
“What say ye NOW, Minister Myers?”
4. PC STEVEN MYERS ON DESTRUCTION OF GOVERNMENT RECORDS
I’m presenting two short clips from Steven Myers in this post. The first is his response to the Ministerial Statement by the Minister of Education at the time, Hon. Doug Currie, announcing amendments to the Archives and Records Act, and the second are comments he made during the debate on the amendment of the Bill.
By that time, the PC Caucus had received briefings from the Auditor General, the Director of ITSS, and the Provincial Archivist on various aspects of the Record Management system at Public Accounts Committee meetings and had learned that all the records of Beck, LeClair, and MacEachern had been deleted illegally.
The PC MLAs learned that although all accounts are “disabled” to remove access by the former employee, in most cases the accounts remain “disabled” and are never “deleted”, leaving all the emails intact. In fact, Scott Cudmore, the Head of ITSS at the time, indicated that there were at least 4,000 “disabled” accounts of former employees with all the emails still on the system.
The other thing known by the PC Caucus at the time amendments to the Archives and Records Act was introduced by the Liberals is that a well-developed policy had been implemented BY THE GHIZ GOVERNMENT in 2007 called, Record Information Management: Managing Electronic Mail. That Departmental Policy Document not only offered clear guidelines regarding the procedures and protocols to be followed for the classification, storage and deletion of government emails and electronic records but explicitly tied those guidelines 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.
“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).
That quotation is in the 2007 Ghiz document on managing electronic documents and emails and was based on the following provision in the Act, cited in the same document:
Immediately following the release of the AG E-gaming Report in the Fall of 2016, Premier MacLauchlan and Minister Currie continually tried to sell the idea that improvements were needed to bring in a new record management regime. However, besides the need for some additional record management resources and an actual “legal consequence” to go along with the prohibition in the Archives Act forbidding the destruction of government records, the PCs were aware that Ghiz had himself implemented an extremely well-organized Government-wide system that was in place when the records were deleted.
As Myers correctly says in this April 5, 2017 response to Hon. Doug Currie’s Statement introducing Amendments to the Archives and Records Act, the problem was that those laws and policies were not adhered to by people who wanted records destroyed:
When the amended Archives and Records Act was being debated, Myers spoke to the Bill and repeatedly expressed the PC Party belief that a penalty not more than a maximum $10,000 fine was a woefully inadequate response. Referring to a Premier and Deputy Minister destroying Government Records and essentially getting away with it because there was no “penalty” in the Archives Act, Myers, called for much stronger measures in the Bill that would see people lose their jobs and go to jail for breaking the law and trust of Islanders:
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