National Post (National Edition)
Case is over, but not the questions
Once again, the public is left in the dark
Well, isn’ t that nice? The Crown has stayed the charge of breach trust against Vice-admiral Mark Norman, on the grounds that there was no reasonable chance of conviction.
The prosecutor, Barbara Mercier, says there was never any political interference in the case, either in the decision to bring the charge to trial or in the decision to drop it.
Norman’s lawyer, Marie Henein, lauds the latter decision as having been taken entirely independently, “in the highest traditions of the bar.”
As for Norman, he is not only a free man, but his legal fees will now be paid for by the Defence Department.
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Unusually, the Department had until now refused. And the Liberal government will be spared a trial that was promising to be acutely embarrassing for it, with former ministers and other high-ranking officials expected to testify for both the Crown and the defendant. How very tidy.
Except … that doesn’ t really answer all of the questions raised by this affair. In fact, it doesn’t really answer any of them. Norman was entitled to every bit as much of the presumption of innocence he now enjoys on the day, in January 2017, when he was peremptorily suspended from his post as the second-highest ranking member of the military, without so much as a hearing; as he was a year later, when he was charged with leaking confidential Cabinet discussions related to a navy shipbuilding contract — leaks that had also proved embarrassing to the government — though not before the prime minister had publicly mused that the matter would “likely end up before the courts.”
But Norman’s guilt or innocence is only one aspect of this case; perhaps not even the most important one. Let’s start at the end. Taking the prosecutor at her word that there was no political involvement in the decision to abandon such a politically explosive case, in the shadow of the election, her explanation for it remains opaque — and not a little odd.
As she told the court, the Crown was given information by Norman’s lawyers in March that “provided greater context to the conduct of Vice-admiral Norman and revealed a number of complexities we were not aware of.” What information was it? Why did it take so long for it to come to light? Why did the Crown have to depend on Norman’s legal team to find it, and why, having been informed of its existence, did it take them another two months to act upon it?
Still more questions attend the original decision to charge and try Norman. It was always a puzzle why this particular leak of government secrets, a routine occurrence in Ottawa, should have excited the RCMP to lay charges and the Public Prosecution Service to take them to court; or why, given the evidence that a number of different people might have had access to them, suspicion should have fixed so single-mindedly on one man. Henein, who now expresses such confidence in the independence of prosecutors, was preparing to argue that, indeed, there was a good deal of political interference in the prosecution, whether directly from the Prime Minister’s Office or indirectly, via the Privy Council Office. A motion to dismiss the case on such grounds was to be argued later this spring, before it even went to trial.
Very well. Is that still her position? Henein is entitled to drop the allegation, if it no longer serves her client. But it remains very much in the public interest to know whether there is any truth to it, especially in light of the evidence of political interference in another prosecution, that of SNC Lavalin.
If there is no truth to the accusation, the government certainly went to great lengths to give it credence. Through months of pretrial hearings, various military and government officials experienced strange gaps in memory with regard to important conversations, about which they took no notes.
Norman’s lawyers found their requests for documents, which it is obligatory for the Crown to release under the rules of disclosure, routinely stonewalled. Among them was a 60-page memo on the case from the Clerk of the Privy Council, Michael Wernick, to the prime minister — an unusual level of interest in a matter in which both deny having had any involvement.
It’s possible this was all just the usual reflexive secretiveness common to all governments. But it is also possible the documents would have revealed something rather less innocent. We have seen how flexibly terms like “interference” or “independence” are defined by government officials, not least by the “non-partisan” former clerk.
Or, perhaps it was something in between. Were RCMP officers, the leaks having been referred to them after an internal government investigation, too anxious to do what they supposed their political masters wanted? Did prosecutors, handed such a sensitive political file, overcome their natural caution and take a case they would otherwise have rejected as too flimsy to stand up in court?
None of this is to detract from Norman’s personal vindication, after two years under a cloud — a period in which he was never once even interviewed by the RCMP. He may well have grounds for legal action against the government; at the very least he deserves an apology. It must be a great relief to him not to have to endure the stress and expense of a trial.
But the public interest is not necessarily so well served. A trial might have shed some light on some of the unanswered questions surrounding this affair. With this sudden decision to end it before it began, the public is once again left in the dark.