NORMAN’S LAWYERS FIGHT TO LIFT REDACTIONS
• Lawyers for Vice-admiral Mark Norman are fighting against redactions on a series of government documents they believe could be key for his defence — including memos drafted for Prime Minister Justin Trudeau on the case and a flurry of emails sent by Trudeau’s senior advisers last fall.
In their application to have the censorship removed, Norman’s lawyers say they particularly need access to any documents that show the government’s analysis on issues of cabinet confidences, as such confidences form the basis of the criminal leak case against Norman.
“Uniquely, this legal analysis is therefore the lynchpin of the Crown’s case and undermining it is central to the Applicant’s ability to demonstrate his innocence,” the application says.
They also argue they need access to documents that could show “improper political or strategic considerations” in how the government made decisions on protecting cabinet information relevant to the case.
Such documents may be crucial for the defence’s abuse-of-process motion, likely to be argued sometime in May. That motion is expected to level allegations of political interference and obstruction of subpoena requests as reasons for the case to be dismissed before it gets to trial, currently scheduled to begin in August.
Norman is facing a criminal charge of breach of trust for allegedly leaking cabinet information about a $700-million navy project. He was suspended from duty in January 2017 and charged in March 2018.
Two days have been scheduled this week for arguments around solicitor-client privilege. Norman’s lawyers argue it has been improperly applied on some documents and should be lifted. If the privilege is found legitimate, they argue the judge should order it waived to allow Norman to fully defend himself.
In their application, Norman’s lawyers included a chart outlining 36 documents on which they’re seeking to lift the redactions. Federal justice department lawyers have conceded on seven documents, including four that were already inadvertently released to the defence, leaving 29 documents for the judge to consider.
Patrick Hill, a director in the Privy Council Office, spent much of Tuesday afternoon being cross-examined by Norman’s lawyer Marie Henein on why solicitor-client privilege was applied to certain documents.
Henein was particularly focused on a steady stream of emails between senior political staff in the Prime Minister’s Office and lawyers in the PCO in October 2018. The emails were sent in the days after Norman’s lawyers filed their subpoenas for government records, called a thirdparty records application.
“Most if not all of the (emails) here pertain to the implications for management of the third-party request in this matter,” Hill told Henein.
But Henein argued that it appeared the emails were attempts at communications management, not legal advice that should be protected by privilege. Many of the emails involved PMO advisers elder Marques and Mathieu Bouchard, and were frequently copied to PMO communications staff.
“‘Management of’ doesn’t necessarily cover legal advice, right?” Henein asked. “In other words, “This could be bad for you’... Is it limited solely to legal advice, or does it include management issues?”
Hill argued the emails are still privileged because they show Marques and other PMO aides asking legal questions.
“In your assertion of a claim of solicitor-client privilege, did you distinguish between seeking legal advice and seeking strategic or tactical advice?” Henein asked a few minutes later.
“I would say that these requests necessarily would involve giving legal advice,” Hill responded.
Later, asking questions about another email chain between political staff and PCO lawyers in August 2017, Henein came back to the question of what exactly counts as legal advice.
“Is it the provision of legal advice, or is it an update as to what’s happening to the communications department? Just because a lawyer says it, doesn’t make it privileged,” Henein said.
But Hill argued that the redaction portions are still “inflected” with legal advice.
The hearing will continue on Wednesday.