Shipbuilding leak court case on hold

Challenges to justice reforms stall progress

OTTAWA • The criminal case of Matthew Matchett, a public servant charged as part of the same leak investigation that ensnared Vice-Admiral Mark Norman, is on pause while the courts grapple with the government’s justice reforms that scrapped most preliminary inquiries.

The RCMP charged Matchett in February with breach of trust over allegedly leaking cabinet information related to a $700-million navy supply ship project with Davie Shipbuilding. Norman was charged over the same matter a year earlier, but Norman’s case never made it to trial; the prosecution dropped it in May after an extensive fight over access to government disclosure.

Norman’s legal team had alleged political interference in the case and were taking aim at the highest ranks of the Liberal government, subpoenaing communications from senior government officials and even Prime Minister Justin Trudeau. But with the case being dropped, that material was never disclosed in court. Norman has since signed a confidential settlement with the government, meaning Matchett’s case may be the only way more details about the leak investigation become public.

After the charge, Matchett’s lawyer, Matthew Day, elected a trial by jury and chose to have a preliminary inquiry, which was scheduled to start Nov. 27 and run for three days. Preliminary inquiries are held to test whether the prosecution’s case has enough evidence to proceed to trial. Defence lawyers also sometimes request them to get an early look at the government’s disclosure and better prepare for trial.

However, in June the Liberal government passed Bill C-75, a massive piece of justice legislation aimed at reducing court delays. The government initially proposed to scrap preliminary inquiries for all but the most serious crimes carrying a penalty of life imprisonment. Following pushback from many legal groups, the government compromised and the final version of the bill allowed preliminary inquiries only for crimes with a maximum sentence of 14 years. Matchett’s charge has a maximum sentence of five years, but it was also laid months before Bill C-75 was passed.

Bill C-75 did not include instructions on whether the change to preliminary inquiries applies to previously existing cases. Instead, courts across the country have taken different stances on this question, and the issue has slowly worked its way up to appeal courts.

The Ontario Superior Court ruled in October that the provision applies retrospectively for all Ontario lower courts, a binding decision that would mean Matchett’s preliminary inquiry could not go forward. But an appeal has been expedited to the Ontario Court of Appeal, which heard arguments on Oct. 28, and now Matchett’s case is waiting on that ruling.

“There’s still no word from the Court of Appeal since their hearing on Monday,” Day told the judge on Friday in a brief appearance. The judge scheduled a check-in for next Friday, saying there would hopefully be a decision by then.

If Matchett’s case can’t have a preliminary inquiry, he and his lawyer will have to decide again how to proceed — whether to stick with a jury trial in the Ontario Superior Court, or to go in the lower provincial court, which generally has faster timelines but can’t be a jury trial. Norman had chosen to proceed in the provincial court.

Should the preliminary inquiry be allowed to go forward, the question would then be whether Matchett’s side is ready to start on Nov. 27. The preliminary inquiry was already delayed after Matchett’s lawyer protested in August that they did not have sufficient disclosure from the prosecution to go forward.