Feds back up a step in fight to keep some information from Mark Norman's lawyers

Federal lawyers have signalled a partial surrender in their fight with Vice-Admiral Mark Norman’s lawyers to keep the contents of some federal documents and memos secret during his trial.

Some of the documents had been delivered accidentally to the defence already

Vice-Admiral Mark Norman stands behind his lawyer Marie Henein as they leave the courthouse in Ottawa following his first appearance in his trial for breach of trust, on Tuesday, April 10, 2018. (Justin Tang/THE CANADIAN PRESS)

Federal lawyers have signalled a partial surrender in their fight with Vice-Admiral Mark Norman's lawyers to keep the contents of some federal documents and memos secret during his trial.

Marie Henein, who represents the former vice-chief of the defence staff, told court at the opening of a two-day pretrial hearing on Tuesday that she's been informed the federal government will no longer contest the release of information in some of the documents.

Robert MacKinnon, a Department of Justice lawyer, acknowledged the department is giving up on a handful of documents because some of the records — which the government claimed were protected — already had been disclosed unwittingly to the defence.

Norman is accused of leaking cabinet secrets and is charged with a single count of breach of trust related to a $668-million shipbuilding deal.

His lawyers have for months been fighting for access to federal documents. Hundreds of those documents have been released, but many key records were redacted.

The federal government has claimed the documents are blacked out to protect solicitor-client privilege and because they contain cabinet secrets.

The defence team is challenging those claims as it argues that Norman's prosecution is politically motivated.

The current court battle focuses on up to 36 memos, analysis reports and emails involving the Privy Council Office and the Prime Minister's Office.

Federal lawyers gave up on censoring seven documents linked to the case on Tuesday because they had been inadvertently seen by the defence when other documents in the case were disclosed.

The government is still fighting to keep secret certain information in 29 other documents.

Trudeau memo almost completely redacted

One of the records the defence has been demanding to see is a 60-page memo about the Norman case written by the country's top federal bureaucrat to Prime Minister Justin Trudeau.

It has been disclosed to the court with its contents almost completely blacked out.

There are other documents related to the case that the federal government is attempting to censor — including an analysis of the cabinet secrets Norman is alleged to have leaked. The analysis was prepared by the Privy Council at the request of the RCMP; the former navy commander's lawyers argue its contents are material to his defence.

The Department of Justice also has claimed solicitor-client privilege over a host of other records, including emails traded between communications staffers in the Prime Minister's Office, Treasury Board and the Privy Council. The subject headings on a few of the emails indicate they involve "lines" — a reference to the responses provided to media questions regarding the case. It's not clear how those lines would fall under solicitor-client privilege.

A question of privilege

In their formal court application for full access to the documents, Norman's lawyers say the Crown cannot simply make a "bald assertion" that the documents are privileged.

"The party must provide a factual basis for the assertion, and explain why the privilege applies to each document in the particular circumstance," said the application, dated April 8.

The application said "solicitor-client privilege" is defined in law as communication between a lawyer and a client for the purpose of giving legal advice. And not everything a lawyer discusses is confidential.

Norman's defence team pointed to communications between the Privy Council's top lawyer, Paul Shuttle, and Hélène Dorion, an associate director general and legal counsel in the same institution.

Henein said Shuttle and Dorion have had other duties, including updating the prime minister's office on developments in the prosecution of Norman.

"Where communications do not relate to legal advice in the context of the solicitor-client relationship, they should not be protected as privilege," said the application.

Federal lawyers argued in their written submission that there was nothing relevant to Norman's defence behind the black ink.

"Moreover, if the court examines the documents, it will be evident they are not likely to raise a reasonable doubt or establish an abuse of process," says the submission.

A senior Privy Council official, Patrick Hill, signed an affidavit swearing that all of the claims of solicitor-client privilege for the redactions were legitimate. He took the stand Tuesday afternoon.

With the uncensored versions of documents on his lap, Henein took him, point by point, through each claim. Hill outlined the reasons each record was redacted without revealing its specific contents.

Norman is not slated to go to trial until the summer.


Murray Brewster

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.