Gov­ern­ment to let court de­cide on cab­i­net se­crets in vice-ad­mi­ral case

Times Colonist - - Business - LEE BERTHI­AUME

OT­TAWA — The fed­eral gov­ern­ment said it will let a judge de­cide whether to re­lease thou­sands of pages of cab­i­net se­crets to Vice-Ad­mi­ral Mark Nor­man’s lawyers, who have ar­gued the records are needed to en­sure their client gets a fair trial.

The Crown’s plan is con­tained in new fil­ings in an On­tario court and ap­pears to put to rest ques­tions over whether Prime Minister Justin Trudeau and his pre­de­ces­sor, Stephen Harper, would agree to re­lease the se­crets.

Most of the doc­u­ments re­late to a $700-mil­lion con­tract to re­fit a civil­ian ves­sel into a tem­po­rary sup­port ship for the navy. The deal was ne­go­ti­ated by the Harper Con­ser­va­tives and fi­nal­ized by the Trudeau Lib­er­als.

Nor­man, the for­mer com­man­der of the Cana­dian navy and vice-chief of the de­fence staff, is charged with breach of trust over al­le­ga­tions he leaked doc­u­ments to the ship­build­ing com­pany when it wasn’t clear that the Lib­er­als would fol­low through with the Con­ser­va­tives’ plans.

While the dis­clo­sure of ev­i­dence is a key tenet of Canada’s le­gal sys­tem, and courts can nor­mally com­pel the re­lease of ev­i­dence that could help an ac­cused per­son’s de­fence, Sec­tion 39 of the Canada Ev­i­dence Act lets the gov­ern­ment refuse re­quests for cab­i­net con­fi­dences.

Usu­ally pre­pared for min­is­ters to aid gov­ern­ment de­lib­er­a­tions and de­ci­sion-mak­ing, doc­u­ments marked as cab­i­net con­fi­dences hold closely guarded po­lit­i­cal se­crets and are legally pro­tected from unau­tho­rized re­lease.

Nor­man’s lawyers were seek­ing a “blan­ket waiver” to see all the records, and gov­ern­ment of­fi­cials had pre­vi­ously as­serted that only the prime minister un­der whom the doc­u­ments were cre­ated could au­tho­rize their re­lease.

But new court doc­u­ments filed Thurs­day by the Crown say the gov­ern­ment has de­cided to take a dif­fer­ent ap­proach — an ap­proach that one ex­pert says is the norm at the pro­vin­cial level and in other Com­mon­wealth coun­tries. The Crown wrote in its sub­mis­sion that the Privy Coun­cil Of­fice, the top fed­eral depart­ment, would not agree to a blan­ket waiver “on the ba­sis that such a waiver had the po­ten­tial to cap­ture in­for­ma­tion com­pletely ir­rel­e­vant to this mat­ter.”

How­ever, Jus­tice Canada lawyer Robert McKin­non said the Privy Coun­cil Of­fice, which is re­spon­si­ble for safe­guard­ing cab­i­net con­fi­dences, “is con­tent that this court de­ter­mine the mat­ter,” ac­cord­ing to the Crown’s sub­mis­sion. “This means that the PCO will not rely on Sec­tion 39 of the Cana­dian Ev­i­dence Act, but will in­stead per­mit this court to de­ter­mine what if any ma­te­ri­als pro­tected by cab­i­net con­fi­dence should be re­leased to the de­fence.”

The court is sched­uled to hold five days of hear­ings start­ing Wed­nes­day, in which the two sides will ar­gue over the rel­e­vance of the doc­u­ments re­quested by Nor­man’s lawyers and whether they should be re­leased. While Trudeau has not pub­licly com­mented on the re­lease of cab­i­net con­fi­dences, Harper said last week­end on Twit­ter that he had “in­di­cated no ob­jec­tion to the re­lease of any doc­u­ment rel­e­vant to the Nor­man case.”

The Privy Coun­cil Of­fice wrote to Harper in Oc­to­ber no­ti­fy­ing him of the plan for deal­ing with the de­fence’s re­quest, ac­cord­ing to an as­so­ciate of the for­mer prime minister who spoke on con­di­tion of anonymity be­cause of the on­go­ing le­gal pro­ceed­ings.

The de­ci­sion to let the court de­cide which records to re­lease re­flects the nor­mal process for other gov­ern­ments, said Univer­sity of Ot­tawa pro­fes­sor Yan Cam­pag­nolo, who has stud­ied the rules around cab­i­net se­crecy.

That is be­cause nei­ther Canada’s prov­inces nor other coun­tries that fol­low the Bri­tish le­gal tra­di­tion have spe­cial laws pro­tect­ing cab­i­net se­crets from dis­clo­sure in court, he said.

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