David Livingston, former premier Dalton's McGuinty's chief of staff from 2012 to 2013. (Nathan Denette/Canadian Press).

I would like to offer a brief dissenting opinion to today’s Ontario Court of Justice decision reported in “Former top Ontario Liberal aide sentenced to 4 months in jail for role in gas plants scandal … David Livingston was chief of staff for former premier Dalton McGuinty.”

I am not offering my opinion as a lawyer or a judge. I am just an Ontario voter in his  early-close-to-mid 70s. At the same time, I do have a PhD in political science from the University of Toronto. And rather long ago now (during the later phases of the old Progressive Conservative dynasty), I spent about a dozen years as an enrolled member of the Ontario Public Service.

I have subsequently worked as a public policy research consultant for a wide variety of clients at all three levels of government in Canada. And I am the author of a number of books on Ontario and Canadian history and politics, from which I still receive (very) modest sums of Canadian dollars more or less regularly.

I should also perhaps say that all I have read about the 4-months-in-jail decision of Justice Timothy Lipson is the CBC News article alluded to above. I am similarly not intimately familiar with all the details of David Livingston’s case.

I have, however, long been following both his case and the larger so-called “gas plants scandal,” with something approaching a professional (and a voter’s) interest in sound and wise Ontario public policy.

I believe I am qualified enough to offer the following two-part opinion on what is essentially a public policy argument for David Livingston’s 4-month jail sentence (also understandably being appealed by his lawyer along with his original conviction) …

(1) Livingston “has done absolutely nothing that is a ‘crime’ which warrants any time in jail”

Whatever one might think about the etiquette and even the ethics of what David Livingston did with emails (not unlike Hillary Clinton down south? – in any case I agree there is room for various kinds of disagreement here), he has done absolutely nothing that is a “crime” which warrants any time in jail.

As defence lawyer Brian Gover has put the matter, “in the circumstances of this case … there was no proof of actual harm” to anyone. On any reasonable assessment, David Livingston is not a criminal in any ordinary meaning of the word. And as a matter of public policy, sentencing him to 4 months in jail only weakens  respect for the rule of law in the wider body politic.

(2) “What is really harmful to the future of parliamentary democracy in Ontario would be putting David Livingston in jail”

Justice Lipson’s argument for David Livingston’s 4-month jail sentence is (as explained in the CBC News report) “that he agrees with the Crown’s contention that Livingston attempted to interfere in the democratic process and that ‘incarceration is necessary’ given the nature his offence …”

The CBC News report goes on, Livingston’s “conduct was an affront to, and an attack upon, democratic institutions and values,’ Lipson said … ‘An attempt to tamper with the democratic process requires a strong denunciatory response’ … ‘The offence is very serious because it involves an attempt by the defendant to thwart the core values of a parliamentary democracy,’ Lipson said.”

This seems to me an altogether egregious and wrong judgment – and exactly the opposite of any sound and wise public policy for preserving and strengthening our democratic institutions, at a time when they are and have been for some time under significant challenge in the global village. What is really harmful to the future of parliamentary democracy in Ontario would be putting David Livingston in jail.

On this dissenting opinion, the entire process by which the gas plants issue in Ontario democratic politics has come before the courts as a criminal matter is part of the problem with our democracy today, not part of the solution. It is part of an entirely misplaced and ultimately destructive effort to criminalize some of the ordinary political behaviour through which our parliamentary democracy has operated for generations, on behalf of some alleged but ill-thought-out higher values of the more recent past.

Conclusion : consequences of trying to reform democracy by criminalizing ordinary democratic politics

In fact this entirely misplaced effort on behalf of alleged higher values has not served to make our politics more democratic or more accountable or more transparent or anything of the sort.

Like  David Livingston’s 4-month jail sentence itself, it has only served, eg, to encourage those on Twitter who urge that Kathleen Wynne ought to be “in jail” because they disagree with her politics. (And for how this kind of anti-democratic Ontario politics looks up close, just search “Kathleen Wynne in jail” on Twitter.)

Similarly, in the last Ontario election only a little more than half the eligible voters actually bothered to vote. And in the election before that less than half the eligible voters actually voted. From my experience in various trenches of Ontario government and politics over a great many years now this has a lot to do with a growing popular cynicism and disgust over the increasingly toxic and hyper-partisan nature of our provincial politics.

And this goes hand in hand with the behaviour that has led to David Livingston’s 4-month jail sentence for his role in the so-called gas plants scandal, which has had everything to do with politics and nothing at all to do with crime. I respectfully hope that our courts will finally see the light in all this, and that defence lawyer Brian Gover was right when he said today “he expected Livingston to be granted bail pending an appeal without having to spend the night in jail,” and then (quite rightly in my view) “denounced the punishment meted out to his client.”