Judge to have final say on Norman case documents
Must decide what is to remain secret
OTTAWA • The first major battle in the criminal trial of Vice-Admiral Mark Norman is over which government documents the defence team will be allowed to see — and the government now says it will let a judge decide.
Norman, the former second-in-command of the Canadian Forces, is facing one count of breach of trust over allegations he leaked secret cabinet information to stop the government from backing out of a contract to acquire a naval supply ship from Quebec’s Davie Shipbuilding.
His defence team is demanding the government disclose to them a massive trove of documents they say they need in order to mount Norman’s defence. Norman’s lawyers have issued subpoenas to seven federal departments and agencies, their requests encompassing as many as 135,000 documents.
At issue is whether the government will use its power under Section 39 of the Canada Evidence Act to declare some of those documents as cabinet confidences, and thus refuse to hand them over. Conservative MPs have been hammering the Liberal government in the House of Commons, demanding they release the documents to Norman. The Liberals have largely avoided engaging with the Conservatives, insisting they can’t comment on a matter before the courts.
During a brief court hearing Friday, Christine Mainville, a lawyer for Norman, said she had been informed yesterday that the government would not be exercising its Section 39 right, but would instead disclose all of the documents to the court and let a judge decide what should be secret.
“The government now is taking the position that the court will adjudicate those pursuant to the common law, that the privy council and the government is not going to rely on Section 39 of the Canada Evidence Act, so that’s all well and good,” said Mainville.
However, she added that the defence remains suspicious the government will not follow through.
“Their position is still that the records should not be disclosed,” she said. “We also have no assurances that if the trial judge determines that these cabinet documents should be disclosed that they won’t then turn around and assert Section 39 or stay the proceedings to preclude that from happening . ... So I just want to make clear for the record that ViceAdmiral Norman is not further ahead today.”
A five-day hearing on Norman’s document disclosure request, called a third-party records application, is scheduled to begin on Dec. 12.
The lawyers noted Friday that Irving Shipbuilding is seeking standing at the hearing, meaning it will likely object to some of the disclosure. Irving, one of Davie’s primary competitors, is at the centre of the Norman matter, having sent a letter to several Liberal cabinet ministers in the fall of 2015 urging them to cancel the deal with Davie in favour of striking a deal with them. Irving has consistently denied it was involved in any political meddling intended to undermine their competitors.
Norman’s lawyers have already said in court filings that they are seeking communication between government ministers — particularly Treasury Board President Scott Brison — and Irving as part of the disclosure.
Their application makes 52 total requests for disclosure of government records. The application contends the disclosure so far has been “selective evidence cherrypicked by the prosecution,” where what is needed is “the full narrative of government activity as it pertained to the (ship contract).”
Robert MacKinnon, a Justice Department lawyer representing the federal departments being subpoenaed, told the court that the scope of the requests needs to be narrowed down.
“We’re taking all steps to get all the documents located and collated from all these different locations, devices, formats,” he said. “Our best estimate right now ... would be in the tens of thousands, approximately perhaps 135,000 (documents). So I’ve spoken with both counsel to work with both of them to see if we can winnow that down, because I think everybody agrees that that is not going to be helpful.”
Mainville told the judge that they agree the court shouldn’t be inundated, but blamed the prosecution for the huge disclosure request.
“It’s an extremely vast, broad prosecution,” she said, noting it covers a two-year period that spans the governments under Prime Ministers Stephen Harper and Justin Trudeau.
“So we are left in the position of having to make these requests and it’s a bit out of our hands.”
During the December hearing, the trial judge will need to decide the “likely relevance” of the documents being requested by the defence. Once it’s determined which documents are relevant, then the judge will need to decide which should be considered secret as cabinet confidences
The parties are scheduled to meet again on Nov. 23 in court to ensure everything is on track for the hearing.
VICE-ADMIRAL NORMAN IS NOT FURTHER AHEAD TODAY.