EPISODE #3: FOX DEMANDS “CRIMINAL INVESTIGATION” OF GHIZ & STEWART

Cover for Episode 3

PREAMBLE

Episode #2 explained how the King Government’s position on Robert Ghiz and Neil Stewart deleting government records is NOW sadly the same as that of Judge Campbell and the two previous Liberal Governments.

The PC Government is now asking three PEI Appeal Court Judges to believe that neither Robert Ghiz nor Neil Stewart did anything wrong when they ordered all government records belonging to the Chief of Staff and a former Deputy Minister involved in e-gaming to be destroyed without first backing up those records for the Provincial Archives as the law requires.

How can the King Government expect the Appeal Court Judges to believe Ghiz and Stewart were simply following the same “standard procedure” in place at the time for all employees leaving their jobs in the PEI Government when the PC MLAs never believed that themselves and still don’t!  CMT’s best “witnesses” against the King government’s filed statements on this issue would actually be PC MLAs being asked to read aloud to the Court from their own statements in Hansard!

The PC MLAs were not only aware that provincial laws had been broken and policies and procedures circumvented when Ghiz and Stewart ordered records destroyed – they already knew that much in 2017, as is evident from the video clips of Myers in the previous episode – but came to believe there were grounds to believe each had committed a crime by destroying records. 

By early 2018, the PC Caucus had acquired a good deal of additional information and evidence and had come to believe that sufficient grounds existed to warrant a criminal investigation into the deletion of records by Ghiz and Stewart, which they demanded Premier MacLauchlan launch. 

The following three clips are from the Spring, 2018 sitting of the Legislative Assembly and feature PC Opposition MLA for Borden-Kinkora, a former Chief of Police, and Justice Critic for the PCs at the time, Jamie Fox. 

What Fox had to say THEN raises the question of why the King Government is not NOW doing what the PC Party was demanding from the MacLauchlan Government less than two years ago:  launch a criminal investigation into Ghiz and Stewart’s destruction of government records?

That could still happen if the political will existed within the King Government to act on what it promised it would do in response to government corruption and coverup.  Keep all of this in mind as you watch the following three clips.

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1coverpageMr. Fox relied on documentation contained in a report that I had just published titled “Did Robert Ghiz and Neil Stewart Commit a Crime?”.  That report contained information about the recent conviction of David Livingston in Ontario. Livingston had been sentenced to 4 months in jail for destroying provincial government records in the Premier’s Office to cover up a Liberal scandal.

My research concluded that sufficient grounds exist to believe that criminal intent motivated both Robert Ghiz’s and Neil Stewart’s respective decisions to destroy sensitive government records on a “secret” government file operating outside the normal framework of Government. That conclusion was based on many facts, documents, and arguments, most of which related to one of two things:

  1. The laws, policies, procedures, processes, and people involved in the management of PEI Government records. This revealed that deliberate planning and circumvention of those laws and procedures would have had to have happened intentionally; and,
  2. The legal arguments and principles in the recent precedent established in the Ontario case 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.

That’s where my research began – studying the Livingston file and the legal process and outcome – and that’s where Fox’s questioning of the Premier on the similarity between what Livingston, Ghiz, and Stewart all did began as well, followed with a question to the Premier on whether he would call for a criminal investigation of Ghiz and Stewart based on this new evidence. Other questions not included in this post had to do with whether the PEI government would consult with the OPP who had expertise in investigating government record deletion about the PEI situation and perhaps contract them to do an investigation. This first clip is where Fox mentions the Livingston case.

 

 

Fox followed up with a question asking whether the Premier was concerned that senior people could so easily get away with breaking the law and destroying the government records of other senior bureaucrats – two of whom were in conflict of interest situations on the e-gaming case – with absolutely no consequences. Fox again equated those acts with the criminal act of “mischief to data” for which Livingston was sent to jail.

 

 

Fox had anticipated that Premier MacLauchlan would simply defer to the authority and expertise of the Auditor General and the RCMP and had a third question ready on the inadequacy of the RCMP’s investigation.  The Premier’s claim that the AG didn’t find any grounds for “criminal charges” to be laid was entirely inaccurate and misleading.

We don’t yet know exactly what the Auditor General told the government regarding concerns around the potential for criminal activity. Any such concerns would have been communicated in that infamous “Management Letter” she sent to Premier Maclauclan which has never been made public.  Paul Ledwell in the Premier’s office recently told me that the letter couldn’t be located after I submitted a FOIPP request asking for it, and the matter is currently under investigation with the Information Commissioner.

It should also be pointed out that the AG did tell members of the Public Accounts Committee about her concerns over potential “insider trading” and “conflict of interest” when she discovered, for example, Billy Dow had invested in an egaming company on a file he was working on at the time, something else for which there have been no consequences. That was something she told the Committee members that she had included in the Management Letter to the Premier and that she also had direct communications about with the Department of Justice.

Yet MacLauchlan said she never said there was anything “criminal” – something completely outside her capacity and mandate. What was within her mandate was to bring “possible” criminal activity to the attention of authorities in the Department of Justice and Attorney General’s Office which she did.

And the AG did confirm with the Public Accounts Committee that concerns about deleted records and conflicts of interest were shared with the Department of Justice in the course of her audit.

As for Premier MacLauchlan’s expression of satisfaction that the RCMP did a thorough investigation of the matter and found no grounds to lay any charges, that response was just an attempt at deflection from the fact he had just heard from Fox; namely, that I had learned that the RCMP did not do any investigation into PEI Government record management policies, procedures, and laws, and could therefore not have drawn any conclusions about there being no grounds for criminal behaviour…sure, they could accurately say that they didn’t find any grounds to lay criminal charges, but probably should have added that they didn’t look very hard.

Ignore the heckling comments and mocking laughter from the Liberal side of the House when Fox mentions my name. Focus instead on the fact that the PC Caucus THEN – comprised of members who are NOW Cabinet Ministers in the Government –  believed that my research and documentary evidence was credible enough to table my report in the PEI Legislative Assembly and spend two days asking the Premier questions based on that research. 

 

 

MacLauchlan said he didn’t have much to say about the “source” of the information he just heard from Fox about how the RCMP admitted they did not conduct an investigation into the record management practices of the government – he actually didn’t have anything to say.  He completely ignored what Fox reported Sgt. Shaw had said as if it wasn’t true, but it was true then and it is true now.

Here is a verbatim section of the transcript of my interview with Sgt. Shaw. Ask yourself if what he says gives you any confidence that a “thorough, thorough, investigation” happened:

Me: “So your 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…”

But that’s pretty much where the PC push to have the Government initiate a criminal investigation ended – they knew that was never going to happen under Premier MacLauchlan.

It was at that point I undertook a much more thorough investigation of the matter which eventually led to me filing a private criminal prosecution against Ghiz in the Provincial Criminal Court.  The evidence in the brief that I had prepared for that Court Hearing was far more detailed than the report Fox tabled in the House.

But Judge Orr shut that down in the blink of an eye and even denied my request for a copy of the transcript, so I couldn’t really take the matter any further. But the PC Government could, and should, based on the strong position the PC Party previously took on this matter.

I don’t believe there is any “Statute of Limitations” to contend with, and there remains more than sufficient evidence that Ghiz and Stewart each committed a crime of causing “mischief to data”, so the proper course of action now that the PCs are the Government is for the Premier to announce the criminal investigation NOW that the PCs called for THEN.

It’s Time the Actual Evidence on Deleted Records Mattered!

To prove criminal intent is no easy matter. It is necessary to prove “beyond a reasonable doubt” that the act of destroying records was done with the intent to cause “mischief” to data, as the Criminal Code explains.  Notwithstanding the very high bar, I believe the evidence I prepared in a 60-page brief [Submitted to Judge Nancy Orr in August 2018] provided sufficient evidence to meet that bar, or to at least warrant a trial. The “test” for going to trial is not as high as the actual “reasonable doubt” test at trial, but only that there is a reasonable likelihood of success at trial.

The Hearing held before Judge Orr was ‘in camera’.  Judge Orr began by asking me to produce my phone, which was removed from the Courtroom.  The Federal Prosecution Office had intervened in the case and the Head of the Atlantic Region Federal Prosecution office was the only other person in the Courtroom besides Judge Orr and me.

I’m not going to tell stories about the abusive treatment I endured that day, constantly being asked questions then being interrupted after I’d get about four words into my answer, over and over again. It was extremely frustrating.  Essentially I was told by Judge Orr that my submission “wasn’t evidence” [which the Federal Prosecutor, to his credit, explained may not be “direct first-hand evidence” but was nonetheless valid “circumstantial” evidence].  Enough said.

Judge Lipson went out of his way to explain that it was  “circumstantial” documentary evidence that decided the Livingston case – documentary evidence that was clear and convincing, and did not suffer from “conflicting’ direct testimony accounts, thereby providing even stronger proof than direct evidence.  The following information was in my legal brief to Judge Orr explaining this was the basis for Lipson’s decision as well:

My evidence is almost entirely “circumstantial,” as was the case in the criminal prosecution of former Chief-of-Staff to former premier Dalton McGuinty, David Livingston, in a recent case in Ontario where he was found guilty of “attempting to commit mischief to data.” for destroying documents in the notorious “gas plant” scandal. As Judge Lipson clarified in his decision in that matter (R. v. Livingston, 2018 ONCJ 25):

“[73] The Crown has presented a circumstantial case against the defendants and urges the court to conclude beyond a reasonable doubt that Mr. Livingston and Ms. Miller had the required intent to destroy data without authorization or colour of right. There is no direct evidence that they had such an intent. Since the Crown’s case depends on circumstantial evidence, the court must be satisfied beyond a reasonable doubt that the only reasonable inference that can be drawn from the circumstantial evidence is that the defendants are guilty.” [Tab 4; p.. 39]:

There is a common misconception that “circumstantial” evidence is less reliable and much inferior to direct evidence (i.e.., first-hand witness testimony); however, depending on the nature of the decisions, events, and circumstances of a given matter, in many cases the opposite is actually true.

Livingston was found guilty on the basis of circumstantial documentary evidence, something Judge Nancy Orr told me she was not willing to recognize as “evidence” at all – saying she needed “first-hand” testimony, basically, someone willing to swear they watched him hit the delete button or send sheets through a shredder. Ridiculous!

But I actually did have some “first-hand” evidence of sorts as well – a statement from the Records Management Liason Officer (RMLO) in Premier Ghiz’s Office declaring that she had absolutely nothing whatsoever to do with the destruction of LeClair’s and Beck’s records, and was never involved in any way.

Perhaps more important than that discovery, was Ms. Long’s confirmation that she had been involved with the management and disposition of other employees leaving positions in the Premier’s Office, and that she had filled out schedules and liaised with the Public Archives and Records Office regarding the disposition of those employees records, but just not with Ghiz and Beck.

As Jamie Fox explained in the above clip, I had an extensive interview with Sgt. Graeme Shaw with the RCMP and it soon became clear to me that the RCMP investigation really didn’t go beyond interviewing scads of people who all said everything was cool and above board.

When I tried to talk to him about how the policies and procedures required conscious decisions to “circumvent” the normal and legal processes and procedures – which showed “intent” – the response I received was the RCMP didn’t look into record management laws, procedures, policies, etc.

MacLauchlan saying the RCMP undertook a thorough investigation is simply not true. At some point, I believe the research and documentation in my 60-page brief will become relevant and of interest to those who want to know the truth. So I’m putting a link to it here (note: some hyperlinks to PEI government documents no longer work) with the index of topics covered.

Judge Orr blocked this case from proceeding to trial, but I’m convinced the evidence continues to warrant charges being laid against former Premier Ghiz and the current Senior Director responsible for the PEI Government’s substantial involvement in the Charlottetown Area Development Corporation, Neil Stewart.

brief 1brief 2Brief 3

This is not the place to attempt to restate all the facts and arguments in this 60-page brief. I’m only pointing out that this important documentary evidence and information remains relevant but continues to be ignored by Government:  Despite the PC Caucus proudly  tabling the document and using its contents as ammunition against the Liberals as PC MLAs in the Legislative Assembly,  the King Government has abandoned its support for these legal and logical conclusions in favour of this lie: what Ghiz and Stewart did when they ordered the destruction of records was done in the “normal course of business.”

Here is a link to my full brief. But let me leave you with this important revelation that I uncovered in my preparation for the Pre-Enquete Hearing.

On August 14, 2018, I called Rose Long, the Records Management Liason Manager in the Premier’s Office at the time Beck and LeClair’s records were destroyed. Ms. Long had recently retired from a 30-year career working in the Premier’s Office shortly after Wade MacLauchlan was elected Premier.  I told her I wanted her to be a witness at the Pre-Enquete Hearing.

Unfortunately, Ms. Long and her husband were booked to be overseas on vacation at the time of the Hearing. After a couple of discussions over the phone, Ms. Long agreed to provide me with a letter explaining that she had no knowledge or involvement with Rory Beck’s and Chris LeClair’s records; however, that she had been involved in the management and disposition of other employee records.  That is important evidence of a premeditated attempt to circumvent the normal record management procedures that were in place in the Premier’s Office and Executive Council at the time.

Letter from Rose Long

This direct first-hand evidence highlights how the RMLO was deliberately excluded from any involvement in the disposition of LeClair’s and Beck’s government records – which was against the Departmental Record Management policy, Treasury board Directives, and the Archives and Records Act.

It stretches credulity to believe that Ms. Long was excluded from the management and disposition of Beck and LeClair’s records,  but was NOT excluded for the disposition of files of other employees leaving the employment with the Premiers Office and Executive council, as an oversight or accident [at that time, the same RMLO (Rose Long) was responsible for both the Premiers Office and the Executive council].

In contrast to Campbell’s opinion on destroying government records, read what Judge Lipson said in his ruling regarding how public officials destroying  government records subvert democracy, which was, in his mind, “the most serious aggravating factor in the case” leading to his 4-month jail sentence:

Livingstone

It can’t be allowed that such en masse destruction of government records by a Premier (Ghiz) and Deputy Minister (Stewart) is dismissed as insignificant and accepted as “standard practice” with government record-management.  As Judge Lipson states so eloquently, the public has a right to expect the “court’s protection” to establish confidence that our government and judicial institutions are operating independently and democratically.  

I trust the Appeal Court Judges will recognize the PC Government filing for what it is – the same position of the former Liberal Government full of statements, claims and denials that the PC MLAs know to be absolutely false and will NEVER say a single word publicly to defend! Like I said, I trust the Appeal Court Judges will recognize the PC Government filing for what it is…..a shameful betrayal of the basic principles of democracy and justice that all PEI residents expect and deserve.

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The phrase has exactly 51 letters and one comma, with NO spaces between words. You only get one guess – email your guess to kja321@gmail.com

 

#18

 

 

Kevin J. Arsenault

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