Mark Norman's defence team accuses Crown of holding back documents

The lawyer for the military’s former second-in-command accused the Crown today of deliberately withholding vital notes in the breach of trust case against Vice-Admiral Mark Norman.

Witnesses' written notes have not been shared with defence, says lawyer Marie Henein

Vice-Admiral Mark Norman listens as his lawyer Marie Henein speaks to reporters as they leave the courthouse in Ottawa following his first appearance for his trial for breach of trust, on Tuesday, April 10, 2018. (Justin Tang/Canadian Press)

The lawyer for the military's former second-in-command accused the Crown today of deliberately withholding vital notes in the breach of trust case against Vice-Admiral Mark Norman.

Marie Henein told a pre-trial hearing that key prosecution witnesses brought written notes to interviews conducted by the RCMP.

She said those notes — belonging to Gavin Liddy, Ian Burke, Tisha Ashton, Siobhan Harty and Melissa Burke — and other documents were provided to the Department of Justice earlier this fall, but they have not been disclosed to Norman's defence team.

"Information comes to our attention, very late in the day, that not only are the notes provided to the Department of Justice, [but] the witness alerts them that this is highly relevant to the defence of Vice Admiral Norman," Henein told the court.

Pushback from Justice?

Henein said that, despite the "extraordinary" cooperation of "members of both the Liberal and Conservative parties" who have contacted her "wanting to ensure we have received the information," she's still in the dark.

"As I stand before today, we do not have (the notes) ... and we have been alerted the Department of Justice is actually resisting producing those notes."

In testimony later in the day, a Justice Department paralegal, Patsy Bradley, confirmed receipt of the documents. She said they have not been handed over to defence attorneys yet because they're still being vetted.

Norman is accused of leaking cabinet secrets in relation to a $668 million contract to lease a supply ship for the navy.

The Crown alleges that the former commander of the navy tipped off a now-former CBC reporter about the results of a secret Liberal cabinet committee decision to put the project on hold in November 2015.

The government eventually went ahead with the lease arrangement but launched a police investigation into the leak.

Henein filed a motion in early October asking the court to force the government to release records related to the case. A federal lawyer said at a previous hearing that as many 135,000 documents are covered by the defence team's request.

Henein argued today that the government is inflating the number of records requested by her team. She said the government has not even produced an index of the documents and described her efforts to pin the Crown down as "a game of cat and mouse."

By the end of the day Wednesday, the government had handed over a laptop with only 161 documents on it to the defence. Bradley said it will take her and a team of roughly 60 government workers until February or March to produce everything relevant the defence has requested.

The claim that the Crown has failed to disclose records has become a political issue for Conservative opposition MPs, who have been hammering the Liberals with it repeatedly in question period.

Pointing a finger at Brison

In asking the court for documents, Henein took aim at Treasury Board President Scott Brison, who apparently raised the loudest objection to the leased supply ship contract with the Davie Shipyard, in Levis, Que., which has been at the centre of the case.

She accused him, in court filings, of attempting to cancel the controversial deal at the behest of rival Irving Shipbuilding of Halifax. 

The court heard Wednesday from Bradley that Brison has not been asked by government officials to search his personal computer and email account for any correspondence that may be related to the case.

Norman does not go to trial until next August.

One of the key aspects of the case involves the disclosure of secret cabinet records. In order to prove Norman leaked secrets, the Crown will have to demonstrate the information released was secret.

The Crown alleges that Norman disclosed sensitive information, including the supposed leak to the media, on 12 separate occasions.

The bulk of those alleged leaks supposedly went to the Davie shipyard, in Levis, Que., the company at the centre of the lease deal.

Many of the documents involved in that aspect of the case relate to the former Conservative government. In a tweet, former prime minister Stephen Harper has said he has no objection to waiving cabinet secrecy related to the lease deal.

Prime Minister Justin Trudeau has refused to sign a blanket waiver of cabinet confidence.

The government has agreed to hand relevant documents over to the trial judge and let her decide what gets entered into evidence.


Murray Brewster

Senior reporter, defence and security

Murray Brewster is senior defence writer for CBC News, based in Ottawa. He has covered the Canadian military and foreign policy from Parliament Hill for over a decade. Among other assignments, he spent a total of 15 months on the ground covering the Afghan war for The Canadian Press. Prior to that, he covered defence issues and politics for CP in Nova Scotia for 11 years and was bureau chief for Standard Broadcast News in Ottawa.