Scott Stinson: Kathleen Wynne may have a scandal she can’t outrun

The gas-plant scandal is proving to be hard for Kathleen Wynne to outrun.

The broad strokes of the Thursday revelations that provincial police are investigating possible breach of trust charges against a senior aide to former premier Dalton McGuinty should not be that surprising to anyone who has paid attention to the file over the past year.

Testimony before ongoing justice committee hearings, and a report from the information and privacy commissioner, have made it clear that some of Mr. McGuinty’s closest advisors, including former chief of staff David Livingston, went to considerable effort to ensure that there was no digital record of their communications, the better to frustrate efforts by opposition MPPs to find out which Liberals knew what — and when — about cancellation costs that were five times higher than they had first stated publicly.

But still: criminal charges? That might be just the thing that boils a complex file down to its essence in the minds of voters who long ago tired of the scandal. And the news no doubt caused backs to stiffen throughout the NDP caucus, as it again considers propping up the minority Liberals through a third budget cycle.

Police documents that were part of the information to obtain a search warrant used to seize computer hardware formerly in the office of Mr. McGuinty say that Mr. Livingston directed efforts to have an outside expert access the hard drives of as many as two dozen computer terminals. The outside expert, said by police to be the boyfriend of another former McGuinty staffer, was able to use a special administrator password that would have allowed the deleting of files.  The police information, which has not been tested in court, was released after a challenge from media lawyers.

Cabinet secretary Peter Wallace, the head of the Ontario Public Service, told police in the summer that Mr. Livingston had sought the administrator access, and mused about bringing in outside help, suggestions that he found hard to believe.

“It’s one of those things that that you really don’t take seriously because, it’s like, really?,” the police document quotes Mr. Wallace as saying. “Like, that’s such a piece of s—. Like, I’m not going to write you a memo saying don’t do that, because you already know, don’t do that.”

Mr. Wallace’s discussion with investigators was a fair bit more colourful than his testimony before the justice committee last June, but the essence of what he said was the same. Then, he told MPPs, since he had no oversight over political staff, he provided “informal advice” to Mr. Livingston that, at a time of heightened scrutiny, it would look beyond curious if senior McGuinty staffers suddenly had no email trails.

“It would leave the government open to the inference that is being drawn right now,” Mr. Wallace put it diplomatically, the inference being that it would look like someone was trying to cover something up.

Asked how Mr. McGuinty’s chief of staff received this guidance, Mr. Wallace told the committee: “I don’t recall him expressing great deals of satisfaction that the advice was particularly useful to him.”

That’s pretty much the nub of the story, then: Mr. McGuinty’s right hand went to the province’s top bureaucrat, and asked about getting extraordinary IT access. The civil servants suggested that wasn’t the way things were done, they were rebuffed, and the access was granted. Police believe the seized hard drives will show whether a criminal act occurred in the deletion of public records. The other shoe has not yet fully dropped.

And, as it has been with each of two Auditor-General’s reports on the costs of the gas-plant cancellations that showed the true total costs to Ontarians to be far higher than the Liberals had initially said, and again with the privacy commissioner’s incredulous report on the “routine” deletion of emails among former McGuinty staff, contrary to government rules, it is Ms. Wynne who is left to appear shocked by what her predecessor has wrought.

The details in the police document first emerged during Question Period on Thursday, and the Premier, not normally at a loss for words, only responded that the allegations were “serious” and that her office would co-operate with police.

By Thursday afternoon, she stood before her office door at Queen’s Park, looking grim, to tell reporters that the police allegations “if true, are disturbing” and that they were “not the way a government is run.” Ms. Wynne said that Mr. Livingston had never worked for her office, but she took no questions on the matter.

After PC leader Tim Hudak took the opportunity to lay the document-deletion scandal at the Premier’s feet, alleging that since the police investigation covers the transition period between when Mr. McGuinty’s staff moved out of the Premier’s office and her staff moved in, “clearly [Ms. Wynne] must have known about it.”

Three hours later, Ms. Wynne met with reporters again, calling those allegations baseless and denying that she had anything to do with Mr. Livingston or any knowledge of what he might have done.

Mr. Hudak and his energy critic, Lisa McLeod, repeatedly called on the NDP to “do the right thing” and vote with the PCs to force an election — the expected spring budget would be the likely first opportunity to do so — but Andrea Horwath made no such commitment. She told reporters that she was “shocked” by the allegations, but said no decision had been made on the budget. “There’s no doubt those considerations are in play,” she said.

One wonders what it would take to truly push the NDP leader over the edge here. This scandal is so far removed from the early days in which the Liberal defence was that other parties wanted to cancel the plants, too. Only the Liberals cancelled them, then blatantly misled the public on the costs of those decisions. Only the Liberals set about getting rid of the electronic records of those decisions. And only the Liberals, or one of them at least, is under criminal investigation.

Whether Ms. Wynne deserves to be punished for the sins of Mr. McGuinty is a fair question. But the public at least deserves the chance to consider it. For the NDP, the question has for two years been about what would finally cause them to topple the government.

But if not this, then what?

National Post, with files from Postmedia News