A sorry saga worthy of Shakespeare

Mark Norman is in a war with few allies

The lines from Shakespeare are an axiom of any military: “We few, we happy few, we band of brothers; for he that sheds his blood today with me shall be my brother.”

The words speak to the profound bonds forged by those in uniform, especially at times of war, and to their love of and loyalty to one another.

Yet the only two people riding to the rescue of ViceAdmiral Mark Norman, aside from his formidable team of lawyers led by Marie Henein, are two mid-level public servants who wanted to do the right thing and feared that Henein et al weren’t getting the information they needed to properly defend him.

Collectively, they have also added flesh to the bones of the defence allegation that the Liberal government may be trying to bury relevant documents — and Norman with them.

He is charged with a single count of criminal breach of trust for allegedly leaking confidential information about the iAOR — the interim Auxiliary Oil Replenishment vessel — which Canada, under the former Stephen Harper government, decided it badly needed and which the new Liberal government, elected in the fall of 2015, was trying to stall.

Norman allegedly leaked secret information to an acquaintance of the company, Chantier Davie, which was to supply the ship, and to a CBC reporter.

The CBC reporter wrote about the endangered contract — and the $89-million penalty taxpayers would have paid had it not been signed — and the Liberals backed off.

Melissa Burke, a former analyst at the Privy Council Office (PCO), the bureaucracy that serves the prime minister, wrote Christine Mainville, one of the defence team, late last month.

“I think these notes would be relevant to your defence,” Burke wrote. “I brought them to the attention of the government, and I understand that they will be provided to you.

“But I wanted to make sure.”

The notes disclose a meeting Burke had forgotten about, she said, a so-called “four corners” meeting among the PCO, the Prime Minister’s Office (PMO), the Department of National Defence (DND) and Public Works.

Such meetings are held among senior officials from all involved departments and political staff and are usually held before a matter goes to cabinet.

At this one, on March 24, 2015, Burke said, she made particular notes of “an exchange between the PMO and Vice-Admiral Norman as to what their (the Harper government’s) preferences are.”

Burke immediately knew it was important and “literally physically flagged it” in her notes.

The notes are among material whose relevance Justice Department lawyers are still, even now, disputing. They have never been disclosed to defence lawyers but could be if Ontario Court Judge Heather Perkins-McVey decides they are relevant.

After Burke’s testimony, a Canadian Forces member now known only as Witness A told the judge Tuesday he came forward “because I think it’s the right thing to do.”

Perkins-McVey imposed a publication ban on the man’s name and information that would tend to identify him.

He said in an affidavit he feared “potential intimidation and reprisal actions” were he publicly known.

He told the judge that shortly after starting on a new job that gave him reason to be involved in Access to Information and Privacy (ATIP) applications he was told to answer one particular request “nil response,” meaning no documents could be found.

This was in relation to a 2017 ATIP request seeking records and notes relating to the Norman case.

At one point, the man said, a smiling brigadiergeneral told him of this ATIP request, “Aaah, (Witness A). Don’t worry; this isn’t our first rodeo.

“We made sure we didn’t use his (Norman’s) name.”

Henein is now subpoenaing that brigadier-general, as well as Chief of the Defence Staff Jonathan Vance and former deputy DND minister John Forster after the judge scheduled three more days for the hearing in January.

Witness A was accompanied by his own lawyer, Ian Carter, as was Ms. Burke accompanied by hers, Anne-Marie McElroy.

It was in response to a Henein subpoena that Burke went through the notes she had made in her 2½ years at the PCO, where she was the note taker at Harper cabinet meetings.

She had disclosed the fact that she had the notes in her interview with the RCMP in January of 2016, when the force was still investigating Norman.

Yet astonishingly, in the almost intervening two years — until the end of October this year — neither the RCMP, Crown prosecutors nor lawyers from the Justice Department ever asked her to produce the notes.

It appears that only after she was subpoenaed by the defence team that the RCMP belatedly asked about getting them.

This delay, coupled with the general level of stalling with which repeated defence requests for documents have been met (it often took three defence letters to even get a response from the prosecution team), led a furious Henein to remind the judge that in the recent prosecution of former Dalton McGuinty chief of staff David Livingston, it was Access to Information requests from parliamentarians, reporters and citizens that repeatedly purportedly turned up no documents. It was only when the code name for the Livingston project — to have government computers cleansed, apparently of embarrassing gas plant information — was discovered that the requests started to produce documents.

As another example of what Henein called obfuscation by the government, she produced an email dated Tuesday from former PM Harper to Michael Wernick, clerk of the PCO.

As the Norman case got more headlines and the issue of whether the Justin Trudeau government would waive cabinet confidence and thus free civil servants to speak honestly, it became clear that most of the documents the defence is seeking date to the Harper era.

In apparent reply to all this, Harper even tweeted that he had never claimed cabinet confidence.

Yet asked for that waiver — or any evidence the current government had even asked Harper for it — repeatedly by the defence, the government refused to answer.

Only on Nov. 1, did the government finally say it wouldn’t claim that confidence, but rather “the public interest immunity.”

But in the case of Burke, the PCO had in fact released her from cabinet confidence almost a year ago, yet no one in government — including a Justice lawyer who met her recently — ever deigned to tell her.

“To suggest this isn’t obfuscation and gamesmanship, when we directly asked again and again (about both the Harper waiver and the government’s position on cabinet confidence), they (the government) have refused to answer that question since July,” Henein snapped.

“After 3½ years, how is it that his counsel has to try to unravel this?” Henein thundered.

“And this is the tip of the iceberg.”

In other words, Mark Norman, is indeed in a war.

He just has no happy few with him.