Norman prosecutors hand over unredacted notes
Detail meetings with Crown, lawyers in PCO
OTTAWA • Vice-Admiral Mark Norman’s defence lawyers now have unredacted copies of the notes Crown prosecutors made when they met with senior government lawyers — notes that may be key in the defence’s attempt to have the case tossed next month.
Prosecutors handed over the notes on Friday after Norman’s lawyers challenged the redactions, raising concerns the version they’d been given previously omitted material that could show political interference in the prosecution.
The meetings took place from May 2017 to September 2018 between prosecutors and lawyers from the Privy Council Office, the government bureaucracy that supports the prime minister and the federal cabinet.
Portions of the notes had been blacked out on the basis of litigation privilege; a Crown prosecutor had said the redacted portions touched on discussions of “trial strategy.”
In a brief court hearing on Friday, prosecutor John MacFarlane told the judge they still believe they have a valid claim to privilege, but will hand over the notes anyway.
“We’re waiving the privilege in order to provide complete transparency to Vice-Admiral Norman, his defence team, that in the wake of the comments made in court on Monday, there is no political influence over (the prosecution), no improper influence by Privy Council Office in our pros- ecution,” he said, adding that issues of prosecutorial independence are of “utmost concern.”
“There’s no direction from the Privy Council Office to the (prosecution) on how to run its case,” he repeated later. “There’s no direction or input from the Prime Minister’s Office to our office on how to run its case.”
MacFarlane said the Crown’s intent was to protect conversations among prosecutors about trial strategy, not between prosecutors and Privy Council lawyers.
He said prosecutors were looking to have someone from Privy Council testify on the nature of cabinet secrecy, given Norman has been charged with leaking cabinet information.
Yet Justice Heather Perkins-McVey pointed out that even in the notes previously disclosed, there appear to be questionable conversations between prosecutors and Privy Council lawyers.
“Well there’s certainly discussion of evidence, when you look at (the notes),” she said. “There’s also discussion of the evidence-gathering process.”
The judge pointed to one comment in the notes attributed to Privy Council lawyer Paul Shuttle.
“How about comments from Paul Shuttle like, ‘Is there a way to engineer the issues at stake?’” she said.
But it is not clear exactly what Shuttle is referring to, as the judge later acknowledged.
“That’s the difficulty with notes, of course,” she said. “We don’t know the context, we don’t know exactly what they were speaking about.”
Norman’s lawyer, Christine Mainville, agreed that “a lot of it remains a bit ambiguous.”
But Mainville also said the notes are expected to be crucial for a motion the defence is bringing on abuse of process, scheduled to be heard in the last week of March.
The defence has not filed the motion yet but is expected to argue that the prosecution of Norman was politically motivated, among other claims.
“I would say, it’s difficult to imagine a scenario where the March motion gets argued and no reference is made to these notes,” she told the judge in arguing why they needed full access to them.
The motion will seek to have the judge toss the case before it gets to trial, which is scheduled to start in mid-August and run for two months.
The arguments over political interference in the case come as a scandal unfolds in Ottawa over whether anyone in the Prime Minister’s Office had pressured former Justice Minister and Attorney General Jody Wilson-Raybould to intervene in a corruption prosecution against SNC-Lavalin, a massive Quebec-based construction firm.
Wilson-Raybould resigned from cabinet earlier this week, and has retained legal counsel to help determine what she is allowed to say about the situation.
Prime Minister Justin Trudeau has denied he instructed or pressured Wilson-Raybould to step in on the case, but questions are lingering over whether anyone on his staff did.
It is a constitutional principle that attorneys general are not politically pressured when it comes to decisions on criminal prosecutions.
Mainville told the court on Monday that if prosecutors and Privy Council lawyers were discussing trial strategy together, it would be “more concerning” than the allegations in the SNCLavalin case.
The Norman case is scheduled to be back in court on Feb. 22 for a check-in and to address any other issues on disclosure to the defence.