Karen SelickDeleted government emails have been hot news in Ontario since former premier Dalton McGuinty’s aides David Livingston and Laura Miller were charged with deliberately destroying records relating to cancelled gas-fired power plants.

Now an unrelated Ontario trial has revealed another alleged incident of deliberately deleted government emails.

In late 2015, government employees and police raided Glencolton Farms near Durham, Ont. It’s the home of dairy farmer Michael Schmidt, who has for decades advocated the legalization of raw milk sales in Canada. The farm is now an incorporated co-op owned by about 150 shareholders.

When bureaucrats and police officers began seizing milk products and computers, about 70 people (co-op owners and their family members) rapidly converged on the farm to defend their property. Someone – not Schmidt – drove a tractor across the driveway, making it impossible for the government’s van to leave. Dozens of people milled about, questioning the legality of the intended seizure (or, as they saw it, theft) of the milk.

The standoff ended after about five hours with the government unloading its van and the co-op members then permitting the empty vehicle to depart.

No one was arrested that day. But eventually, five people were charged with obstructing police officers. One was Schmidt, who the prosecutor cast as the blockade’s mastermind, despite markedly conflicting evidence from witnesses.

While awaiting trial, the accused filed a freedom of information request. They especially wanted to find out why only five of them, out of 70 present that day, were charged. What criteria had the government used in deciding who to prosecute? Was this prosecution actually designed to put Schmidt in jail and silence his repeated, annoying advocacy on raw milk?

They eventually received a copy of the notebook of lead investigator Const. Ken MacPherson of the West Grey Police Service. His notes made references to emails exchanged between himself and other investigators. The accused asked for those emails. To their consternation, they were told that MacPherson had “resigned from [the police] service in June of 2016 and his email account including all sent and received emails was deleted at that time.”

What? The chief investigating officer in a criminal case leaves his job while a trial is still pending and all of his electronic correspondence is destroyed? Is this what normally happens at the West Grey Police Service? How many other cases were on MacPherson’s plate when he left? How many other accused people have been denied full disclosure because officers resign or retire and their email accounts are destroyed? And considering that the charges relating to the destroyed gas plant documents had been laid only six months earlier, how could it have escaped the police service’s attention that destroying all of an officer’s emails might be problematic? 

The Police Services Act of Ontario gives clear guidance on this subject: it’s considered misconduct for an officer to wilfully or carelessly cause the loss or damage of records belonging to the police force. It’s also a Criminal Code offence to wilfully destroy computer data. Someone might be in a wee bit of trouble.

In any event, the Crown dropped the charges against two of the accused and a third was acquitted before Schmidt went to trial. Schmidt was convicted in October 2017 and sentenced in November to 60 days in jail. A few days later, the Crown quietly dropped the charges against the fifth accused.

One obvious inference is that the goal of the exercise was indeed to put Schmidt in jail and that charging the others was mere window dressing. Once a conviction was secured against Schmidt, the others were superfluous. The missing emails might corroborate this.

Both the current chief of police in West Grey and the Crown counsel prosecuting the case declined to be interviewed for this article.

Schmidt is appealing his conviction, his sentence and a judicial ruling that prevented him from accessing the destroyed emails on the computers of the people who MacPherson corresponded with.

Meanwhile, a formal complaint about the destroyed emails under the Police Services Act, and possibly under the Criminal Code, seems warranted.

Karen Selick was Michael Schmidt’s lawyer from 2010 to 2013, and remains his friend.

emails, justice

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