VICE-ADMIRAL’S CASE IS A SHOW OF STATE POWER.
Not such a show of state power since Black trial
As Ontario Premier Doug Ford might say, it’s shaping up as a real humdinger.
I refer to the prosecution of Vice-admiral Mark Norman, the former vice-chief of the defence staff, where a third-party records application brought by defence lawyers is now on hiatus until January.
The hearing ran for two days in Ottawa this week and was so replete with news — first, an email from former prime minister Stephen Harper, waiving cabinet confidence on documents dating from his era and then two surprise witnesses, public servants called by the defence, the sum of whose evidence was that the current government may be very well trying to bury records in the case — that one aspect got lost.
It is this, the curious conduct of the state in all this.
The state is a three-headed beast in the Norman prosecution, who is charged with a single count of breach of trust for allegedly leaking secret information.
First, it is the complainant; it was the Privy Council Office of Prime Minister Justin Trudeau that first called in the RCMP.
Second, it is the prosecutor, with three federal Crowns from across the country and three Justice Department lawyers handling the case.
Third, the state is the controller of all information.
The defence seeks records (emails, texts, briefing notes) of various meetings among government officials who discussed either the ship (the interim Auxiliary Oil Replenishment, or IAOR, ship Ottawa wanted
under Harper and didn’t under Trudeau), the leaks about it or the RCMP investigation into Norman’s conduct.
Only the government, either through the involved departments (such as Treasury Board, Department of
National Defence) or the Prime Minister’s Office or the PCO (the powerful bureaucracy that serves the PM), has access to those records and controls them.
The departments, for instance, exercise control through requests for information made under the Access to Information and Privacy legislation. The PCO can exert claims of “cabinet confidence,” and this claim is absolute and can’t even be reviewed by a court.
Thus, from the get-go, the defence team (Marie Henein, Christine Mainville and Maya Borooah) was up against it.
In fact, even the state’s physical presence in court (six lawyers seated at the tables, with assorted other justice lawyers hanging about in the public section) could be intimidating.
I haven’t seen such a muscular presentation of the power of the state since the long-ago trial of my colleague, Conrad Black, in Chicago, where the government’s main witness, Black’s former trusted lieutenant David Radler, once described
the array of people who faced him at his first meeting — a representative of every government department with a three-letter acronym (FBI, CIA, IRS, etc.).
There at least, as with much in America, the presentation and message were honest: We are the government, Mr. Radler, and if you
don’t help us, we will crush you.
It is much less transparent, but with the same awesome power, in the Norman case.
Here, the state pretends it is horrified and offended at allegations it is being less than co-operative and dragging its big feet, while still, inevitably, being unco-operative and dragging its big feet.
Take, for instance, the issue of the Harper cabinet confidence.
Henein first wrote prosecutors, asking what the status of the waiver of cabinet confidence was — emphasizing that any waiver must cover the entire time period at issue, in other words, the Harper era, on July 9.
It is self-evident that the defence needed to know this, if they were to properly defend their guy.
With no response, she wrote again on July 17, on Aug. 28, and Sept. 12, this time asking if Norman himself was prohibited from disclosing such confidences to his own lawyers.
Finally, on Sept. 18, she wrote Trudeau directly, copying the clerk of the PCO, begging for some direction. (There never was a response from the PM.)
Henein finally got written responses from prosecutors in September, and it’s clear there were some discussions along the way, but when she and Mainville wrote again in early October, they pointed out that the PCO confirms that “PM Harper would have to approve of their disclosure” and asked, in effect, what prosecutors were doing about that.
They also remarked, not for the first time, that prosecutors “seem to be wholly unconcerned by this fairness issue.”
Finally, this week, Harper sent a note to the clerk of the PCO (copied to Henein) repeating formally what he’d said already in a tweet — “I do not assert cabinet confidence for documents relevant to this proceeding,” and left it for the judge to determine relevance and disclose what she wished.
Lest you imagine only the defence cares about this, Ontario Court Judge Heather Perkins-mcvey appears to care too.
At one point on Tuesday, she cut off one of the prosecutors who was attempting to stall to consider the evidence of one of the surprise witnesses.
“His evidence is very clear,” the judge said. “Very troubling.” The man had testified at what seemed to him to have been DND efforts to bury key documents.
Of another key witness, who testified that though she flagged for government lawyers a particular document, no one had made any effort to get her notes. “It’s troubling,” the judge said. “Very troubling, given how the witness had specifically flagged it.”
For the record, the Crown — in this case prosecutors and Justice lawyers — has a higher duty, as cases at both the Ontario Court of Appeal and Supreme Court have made clear — than ordinary lawyers.
That obligation is, in the language of the court, to the administration of justice. You and I know that as the truth; the Crown has an obligation to get at the full story, the bottom line, and to disclose it.
As Ontario appeal court Justice David Doherty remarked in a case called R
v Ahluwalia, a drug case where prosecutors had failed to disclose the lengthy criminal record of a key witness, “Remarkably, the Crown
professed to have no idea why full disclosure had not been made, offered no explanation (for the failure)…” Remarkably, it all sounds
unsettlingly familiar.