OTTAWA — The criminal case against Vice-Admiral Mark Norman was defined from the start by a colossal battle for access to tens of thousands of government documents.
That fight for disclosure of documents the government claimed were confidential, which consumed most of the past year, appears to have ultimately turned the tables in favour of Norman, the former second-in-command of the Canadian military.
The National Post has learned federal prosecutors are expected to withdraw the breach of trust charge against Norman on Wednesday. The case formally began just over a year ago, in March 2018, when Norman was charged with breach of trust for allegedly leaking cabinet secrets about a $700-million navy supply ship project.
The first signs of trouble for the government came in the summer of 2018, when Norman’s lawyers Marie Henein and Christine Mainville started pressing for a waiver of cabinet privilege over all documents relevant to the case. The government had the right, if it chose to use it, to assert privilege over all of those documents — which would have kept them secret from Norman’s team.
In the early fall, the court heard evidence from Norman’s lawyers that the government was being mysteriously slow in providing a clear answer on the question of a waiver. Finally, in November , the government revealed it would not issue a waiver — but would also not assert its privilege. Instead, it would let the judge decide what should be secret. Privy Council Clerk Michael Wernick later testified to the House of Commons justice committee that he personally made this decision.
At the time it appeared to be a minor victory for the defence. But Henein was cautious in her response, warning that the government could change its mind. “I just want to make clear for the record that Vice-Admiral Norman is not further ahead today,” she told the court on Nov. 2.
It turned out to be a major victory for the defence, as in the following months the judge repeatedly took their side over what documents should be disclosed. Though a written decision has still not been released, the judge commented earlier this year that the defence was getting much of what it asked for.
And it was an enormous number of documents. In a third-party records application filed in October, the defence issued 52 requests for documents spanning 7 government departments; the justice department’s initial search turned up 135,000 responsive documents. (By this spring, the search had been whittled down to around 10,000 documents.)
The application also revealed some of the defence’s strategy, including their intention to go after then-Treasury Board President Scott Brison. (The details are complicated, but essentially Norman’s lawyers argued that Brison was too close to Irving Shipbuilding — the arch-rival of Davie Shipbuilding, the firm that was poised to receive the $700-million contract. Irving has denied any attempt at political interference.) They wanted any document that showed Brison’s communications with Irving, formal and informal.
Brison has steadfastly denied he ever did anything improper in the Norman case, and he independently lawyered up to prepare to defend himself as the case proceeded. But the defence’s subpoenas successfully got Brison’s name into the headlines, and began stirring up political trouble for the Liberal government.
The more important accusation in the third-party records application, however, was that the prosecution of Norman was from the beginning tainted by political motivations. Furthermore, as the case proceeded, Henein and Mainville relentlessly argued that the government was interfering in Norman’s ability to defend himself, alleging everything from obstructing disclosure to having justice department lawyers inappropriately coach the prosecution’s witnesses.
The defence team subpoenaed every document they thought might show inappropriate political involvement in the case. It was these document requests that caused the most headaches for the government. Henein and Mainville specifically ensured that the personal phones and email accounts of the top figures in government — including Prime Minister Justin Trudeau himself and his top staff — were included in the subpoenas.
Most spectacularly, Norman’s lawyers brought a witness to the stand in December who testified that “codenames” were sometimes used for Norman internally in the Department of National Defence, meaning computer searches for Norman’s name might not turn up all the relevant documents.
This prompted the defence to call big names to the stand to respond, including General Jon Vance, the chief of the defence staff, and Zita Astravas, the chief of staff to the defence minister and former director of issues management for the Prime Minister’s Office, a role in which she was responsible for putting out major political fires. It was Astravas who received the most intense grilling from Henein, who uncovered the fact that Astravas had not conducted searches of her personal devices in response to subpoena requests.
Throughout the winter and spring, Norman’s defence launched new allegation after new allegation against the prosecution. In February, they alleged Privy Council lawyers were discussing trial strategy with federal prosecutors in a manner that showed worse political interference than the SNC-Lavalin affair. (The prosecution service strongly denied that any of the discussions were inappropriate or comprised their independence.)
In April, Norman’s lawyers challenged redactions on a series of memos involving staff in the Prime Minister’s Office , arguing they likely weren’t covered by solicitor-client privilege, as claimed.
All of this was leading up to a pre-trial motion that would allege abuse of process, arguing political interference had irreparably damaged Norman’s right to a fair trial. But it appears that motion will never come, nor will the two-month trial that was scheduled to start in August.
Exactly what caused the prosecution service to drop the charge isn’t yet known — including whether it was caused by anything specific uncovered by Norman’s defence team. It is possible the entire case simply became too unwieldy.
It is also possible that if Norman ever files a civil lawsuit, the public will eventually find out what might have caused the case to be abandoned by the state.
• Email: [email protected] | Twitter: btaplatt
Copyright Postmedia Network Inc., 2019
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