Ottawa — The Prime Minister’s Office is at the centre of a new row over allegations of politically interfering in a prosecution – this time in the case of Vice-Admiral Mark Norman.
The legal team for Norman are demanding that redacted notes taken in meetings between Crown prosecutors and government lawyers from the Privy Council Office (PCO) be fully disclosed so defence lawyers can determine whether political interference took place.
Norman lawyer Christine Mainville told a court on Monday that prosecutors should not be talking strategy with the PCO, which she called the “right arm” to the Prime Minister’s Office and first launched the investigation that led to the vice-admiral being charged.
“The PCO supports the prime minister. They implement what the Prime Minister’s Office wants. They execute on behalf of the Prime Minister’s Office,” said Mainville.
“In my respectful submission…the position the Crown is taking is more concerning, I would say, than the allegations relating to SNC-Lavalin,” Mainville said. “The Prime Minister’s Office, by way of its right arm, the PCO, is dealing directly with the (prosecution service), and the prosecution service apparently is allowing this to happen.”
“So much for the independence of the PPSC,” interjected Justice Heather Perkins McVey, referring to the Public Prosecution Service of Canada.
The latest controversy follows a Globe and Mail report last week that alleged the PMO put pressure on the attorney general to direct prosecutors to drop corruption charges against SNC-Lavalin in favour of a remediated agreement. Prime Minister Justin Trudeau has called the allegation false, but has only specifically denied that his office gave directions to the attorney general. Ethics Commissioner Mario Dion is investigating the case.
Norman’s defence team is seeking access to government documents as part of pre-trial hearings. Norman faces one criminal charge of breach of trust for allegedly leaking cabinet secrets, an allegation he has denied.
Among the documents sought by the defence are prosecutor notes from a series of meetings that took place between prosecutors and Privy Council lawyers between May 2017 and September 2018. Portions of the notes have been redacted by the Crown on the basis of “litigation privilege.”
In an email exchange on Friday — and filed as an exhibit in court on Monday — lead prosecutor Barbara Mercier told Mainville the redacted sections are not about witness evidence, but instead “trial strategy.”
“We maintain that discussions about how to run the trial are protected by litigation privilege,” Mercier wrote.
That set off a stream of accusations from Mainville, who drew a connection to the PMO and pointed to the fact prosecutors are supposed to operate independently.
“I don’t have to tell you, your honour, if the Prime Minister’s Office has any kind of input into the conduct of this prosecution…even if just the PCO has input into how to run the trial, that is a corruption of the process, it’s an abuse of process,” Mainville said. She said discussions on trial strategy between the Privy Council and prosecutors are also inappropriate given the Privy Council had investigated the leak, and its lawyers may be witnesses at the trial.
Crown prosecutors have not yet responded to Mainville’s arguments or given more detail about what is in the redacted documents.
A senior government source, speaking on condition of confidentiality in order to discuss the matter, said the defence’s characterization that the Privy Council lawyers were acting as the “right arm” of the PMO was wrong. The source said it was normal for prosecutors to meet with key players in preparing for a criminal trial; in a case involving allegations of cabinet leaks, that naturally involves the PCO.
We maintain that discussions about how to run the trial are protected by litigation privilege
However, Mainville told reporters after the court hearing that it’s not simply the meeting that appears to be an abuse of process, but the nature of the redactions and the explanation from the Crown prosecutor.
“We have not suggested that the mere fact of meeting is an issue,” she said. “But the claim of litigation privilege in respect of those meetings would be a problem, because that privilege is intended for devising trial strategy. It’s intended to protect the adversarial process, and frankly the Privy Council Office or the Prime Minister’s Office should not be an adversary to Vice-Admiral Norman in this case, and certainly not in conjunction with the prosecution service.”
Norman’s defence team is also seeking communications between the Privy Council Office and the Prime Minister’s Office regarding the Norman case, and Mainville told judge those records are now of “heightened relevance.”
“This position on the redacted notes provides an air of reality to our claim of abuse of process,” Mainville said.
The case is expected back in court on Friday, when the Crown will respond to the defence’s concerns about the redactions. The judge will be receiving a sealed version of the un-redacted notes from the meeting.
After Monday’s hearing, Norman gave a short statement to media that marked his first public comments on the case in months.
“I remain confident in our position, I remain very confident in the team that’s supporting me, and I remain confident in the wisdom of the court to make the right decisions,” he said. “And I’d like to thank everyone for their ongoing support in this matter.”