What you need to know about the charge against Mark Nor­man.


National Post (Latest Edition) - - FRONT PAGE - STU­ART THOM­SON Na­tional Post sx­thom­son@post­media.com Twit­ter. com/stu­ar­tx­thom­son

The saga of Mark Nor­man, the for­mer vice- ad­mi­ral who was re­lieved of his du­ties, has been mys­te­ri­ous from day one.

Ini­tially, no ex­pla­na­tion was given and spec­u­la­tion of spy­ing or sex­ual mis­con­duct filled the in­for­ma­tion vac­uum. It even­tu­ally emerged that Nor­man’s mis­con­duct cen­tred around an al­leged leak of clas­si­fied in­for­ma­tion and, ear­lier this month, he was charged with “breach of trust by a pub­lic of­fi­cer.”

The crim­i­nal code sec­tion that ex­plains the charge is a short para­graph with a lit­tle more than 50 words, but it is broadly de­signed to en­sure proper con­duct from gov­ern­ment of­fi­cials. It has been ap­plied to both Sen­a­tor Mike Duffy and to a man who, in his gov­ern­ment role, hired his own yacht for pub­lic pur­poses and cooked the books to hide it.

A 2006 Supreme Court case cen­tring on s. 122, the breach of trust charge, re­viewed cases from Canada, Aus­tralia and Hong Kong as it grap­pled with the sec­tion’s wide scope and, in its de­ci­sion, gave us a good idea of how the charge may ap­ply to Nor­man.

WHAT IS S. 122?

Law pro­fes­sor Peter Sankoff de­scribed one pur­pose of s.122 as “a catch- all pro­vi­sion that is de­signed to en­sure that gov­ern­ment of­fi­cials do not abuse their au­thor­ity.”

Any­one who fol­lowed the Mike Duffy case will prob­a­bly have some vague mem­ory of the “breach of trust” charges that were tacked on to all of the charges for ex­pense fraud. That’s the sec­ond pur­pose of this sec­tion of the crim­i­nal code.

Crim­i­nal charges can be brought against any pub­lic of­fi­cial, but this ex­tra charge makes it clear that breach­ing the trust of the of­fice is es­pe­cially bad. An ex­am­ple at the ex­treme end of crim­i­nal­ity would be an of­fi­cial who is en­rich­ing him­self at the ex­pense of the tax­pay­ers.


Not nec­es­sar­ily. Mis­con­duct by a pub­lic of­fi­cial can also be a breach of trust, but the Supreme Court has set a higher bar for that. For ex­am­ple, an of­fi­cial us­ing her gov­ern­ment com­puter for per­sonal use, or pil­fer­ing some printer pa­per, would likely face a rep­ri­mand but not a breach of trust charge.

In the re­cent Supreme Court case, a di­rec­tor of pub­lic se­cu­rity asked a po­lice of­fi­cer to write a “more com­plete” ac­ci­dent re­port for an ac­ci­dent in­volv­ing his daugh­ter. That sec­ond re­port al­lowed him to avoid pay­ing a $250 de­ductible.

The court agreed that the of­fi­cial was act­ing in his own in­ter­est — which prob­a­bly war­ranted some kind of dis­ci­plinary ac­tion — but that it was an er­ror in judg­ment that didn’t rise to the “level of se­ri­ous­ness” re­quired for a breach of trust.

Im­por­tantly, the of­fi­cial didn’t ask the of­fi­cer to skew his re­port in a favourable di­rec­tion, but he did know that a more com­plete one would ben­e­fit him.


Af­ter the Supreme Court set its high bar, the tough task ahead for pros­e­cu­tors is prov­ing that Nor­man’s al­leged mis­con­duct was a “marked de­par­ture” from nor­mal be­hav­iour in his po­si­tion.

To para­phrase Martin Sheen’s char­ac­ter in Apoc­a­lypse Now, a charge for leak­ing at the De­part­ment of De­fence is like hand­ing out speed­ing tick­ets at the Indy 500.

“I sadly have to say that leak­ing had be­come very much — as coun­ter­in­tu­itive as it sounds — the norm within many gov­ern­ment de­part­ments, in­clud­ing DND,” said for­mer de­fence min­is­ter Peter MacKay, who played a role in the sup­ply ship pro­cure­ment.

The Supreme Court also made it clear that the Crown has to make the case that Nor­man was act­ing for “a dis­hon­est, par­tial, cor­rupt or op­pres­sive pur­pose.”

With the caveat that we don’t know what kind of ev­i­dence the Crown has, Howard Anglin, a lawyer and for­mer deputy chief of staff to Prime Min­is­ter Stephen Harper, said it’s hard to see a cor­rupt mo­tive be­hind the al­leged be­hav­iour.

T he e vi­dence, so f ar, seems to point to a man who was frus­trated with what he saw as po­lit­i­cal in­ter­fer­ence in the pro­cure­ment of badly needed sup­ply ships for the Navy, and “he seemed to be do­ing it for the best of rea­sons,” said Anglin.

Mark Nor­man


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