OTTAWA — The federal government says 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 in Ottawa 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 lawyers’ request, according to an associate of the former prime minister who spoke on condition of anonymity because of the ongoing legal proceedings.
Norman’s lawyers did immediately respond to a request for comment.
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.
“In these jurisdictions, judges have the power to examine the information and order its disclosure where the interest of justice outweighs the interest of good government,” Campagnolo said, adding that it is rare for Canada’s federal government to let that happen.
“Typically, the federal government does not enable judges to examine cabinet confidences and decide whether or not they should be disclosed in the public interest,” he said. “On the contrary, the federal government usually makes the final determination itself, thus preventing judges from examining the documents and assessing the competing aspects of the public interest.”
While the federal government could still invoke Section 39 of the Canada Evidence Act to prevent the judge from releasing documents that she deems relevant and whose disclosure is in the public interest, Campagnolo believed it unlikely because of the potential for a constitutional challenge. Norman’s lawyers could argue that his right to a fair trial was being violated.
Norman was suspended as the military’s second-in-command and charged this past March with one count of breach of trust for allegedly leaking cabinet secrets. He has denied any wrongdoing and vowed to fight the charge.
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Lee Berthiaume, The Canadian Press