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Court hears departments, officials collecting own files in Norman case

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OTTAWA — Federal officials have been collecting thousands of documents — including cabinet secrets — requested by suspended Vice-Admiral Mark Norman’s lawyers largely on their own, an Ottawa court heard Wednesday.

Two months ago, Norman’s lawyers gave the court a list of federal records they say are needed to ensure their client receives a fair trial, and they accused the government of having “cherry-picked” information disclosed in the senior military officer’s breach of trust case.

Many of the documents relate to a $700-million contract with a Quebec shipbuilding company to refit a civilian ship into a support vessel for the navy. The deal was negotiated by the Harper Conservatives in 2015 and signed by the newly elected Trudeau Liberals.

Norman was suspended in January 2017 as the military’s second-in-command and charged with one count of breach of trust in connection with the alleged leak of cabinet secrets around the shipbuilding project. He has denied any wrongdoing and vowed to fight the charge.

During the first day of a five-day pre-trial hearing, court heard from Department of Justice paralegal Patsy Bradley that individual departments — and in some cases certain officials or “custodians” of the relevant files — were responsible for finding documents requested by Norman’s lawyers.

“If they were a key custodian, it was up to them to conduct a search,” Bradley, who is responsible for co-ordinating the government’s response to the document request, testified under cross-examination by defence lawyer Marie Henein.

The documents requested by Norman’s team touch on seven departments, including the Defence Department and the Privy Council Office, the government’s top department. Norman’s lawyers have also asked for records from the Prime Minister’s Office and Treasury Board President Scott Brison.

Bradley said she did follow up with departments to see how they searched for relevant documents, and at one point asked the Defence Department to refine its process. But aside from the Treasury Board, there was no independent or third-party vetting of their responses.

“If they have told me that they have done an exhaustive search, I trust that they are telling the truth,” she said, noting that the requested documents are housed in numerous databases and — in some cases — inside government filing cabinets.

The battle for access to those documents is expected to be the focal point throughout the five-day pre-trial hearing, which is scheduled to run through next week. Norman’s breach of trust case officially goes to trial next August.

Earlier in the day, Henein told the court that she had tried on numerous occasions to work with federal lawyers to narrow the search and find documents most relevant to Norman’s case, but the Justice Department had refused to co-operate.

“Nobody wants a 100,000-document dump,” she told Justice Heather Perkins-McVey. “We really are interested in focusing on issues that are relevant to this case.”

The Justice Department has either ignored her requests or dragged its feet, she added, with government lawyers saying it will take months to collect the documents Norman’s team has requested and more resources aren’t available to speed things up.

Henein also said that several people — including Liberals and Conservatives — had reached out to her office to say they have turned over information relevant to the case, but that the Justice Department had not notified her of their existence.

She called efforts to deal with the Justice Department “a game of cat and mouse throughout.”

Justice Department lawyer Robert MacKinnon rejected Henein’s allegation, saying there was no “malintent” before Bradley was called to the stand.

Government lawyers have said that more than 130,000 documents have been gathered to answer the defence lawyers’ requests, though Bradley said the final number will almost certainly be much smaller once they are processed and reviewed by the different departments.

Some documents have already been collected, and will be the subject of arguments over the coming days on whether they are relevant to the case — and whether they should be released to Norman’s lawyers and the public.

But identifying, collecting and vetting all of the documents requested by Norman’s lawyers could take several months, Bradley said. Exactly how long? Perhaps until February or March, though she said she would have a better idea at the end of this month.

— Follow @leeberthiaume on Twitter.

Lee Berthiaume, The Canadian Press


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COVID-19

Court martial planned for soldier who criticized vaccine mandate, led march to Ottawa

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By Lee Berthiaume in Ottawa

The Canadian soldier who recently led a protest march to Ottawa is now facing a court martial for having spoken out against the federal government’s COVID-19 vaccine requirements while wearing his uniform.

Warrant Officer James Topp was recently notified that he will be allowed to have his case heard in a military court instead of by his chain of command, according to the army reservist’s civilian lawyer.

Phillip Millar says the decision represents a second about-face after the military initially offered his client a court martial when he was charged in February, only to rescind the offer and send his case to Topp’s unit commanders.

“It’s hard to know what they’re doing, because I don’t think they really know what they’re doing,” said Millar. “But now they’re saying it’s a court martial.”

The decision raises the stakes for Topp, according to military law experts, as courts martial are allowed to impose heavier sentences against Armed Forces members than if they are tried by their chain of command in what is known as a summary trial.

Yet it also means he will be allowed to have legal representation at trial, which wouldn’t have necessarily been the case if he was tried by his commanding officer, while his trial will receive much more public attention.

“The stakes are obviously going to be increased in a public-relations context,” said retired lieutenant-colonel Rory Fowler, who is now a lawyer specializing in military law in Kingston, Ont.

The Department of National Defence did not respond to questions about whether Topp’s case was changed from a court martial to summary trial and back again.

Topp was charged in February with two counts of conduct to the prejudice of good order and discipline after the army reservist appeared in uniform in two online videos criticizing vaccine requirements for military personnel and other federal employees.

Canadian Armed Forces members are severely restricted in the comments they can make while in uniform, particularly when it comes to criticizing government policies, in large part to protect the military from any perception of politicization.

Topp, who is now in the process of being released from the military, later led a months-long march from Vancouver that ended in Ottawa last week and was supported by many of the same organizers as this year’s “Freedom Convoy.”

He has since become a symbol of sorts for Canadians opposed to vaccines, vaccine mandates and perceived government overreach. Some Conservative MPs have also hitched their wagon to him, including leadership candidate Pierre Poilievre.

While Millar questioned the military’s back and forth with his client, and said he planned to question the way Topp’s charges were handled, he nonetheless welcomed the latest decision to allow a court martial.

That is because Topp will now be allowed to have a lawyer present during his trial, where Millar said he plans to call expert witnesses to question the need and efficacy of the military’s vaccine requirement.

The requirement imposed by chief of the defence staff Gen. Wayne Eyre late last year remains in place even though a similar mandate for most other federal public servants has now been suspended.

“It opens the door for us to call witnesses about the decision to charge him,” Millar said. “It opens the door for us to call experts on whether or not there was any science behind the mandate.”

While the shift from a summary trial back to a court martial means Topp will be afforded an independent trial with legal representation, Fowler said it also means the army reservist faces potentially stiffer penalties if convicted.

Under a summary trial, commanding officers are largely restricted to handing down reprimands and fines. If he is found guilty by court martial, however, Topp faces the threat of dismissal from the military with disgrace and up to two years in prison.

Retired colonel Michel Drapeau said while there may be a number of reasons why the military opted to change the case from a summary trial back to a court martial, he believed the latter was the appropriate venue for hearing Topp’s case.

“It provides for a trial in an open court with all Charter legal guarantees,” Drapeau said in an email. “It also provides for the provision of free legal support to the member.”

This report by The Canadian Press was first published July 5, 2022.

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COVID-19

Tamara Lich breached conditions by appearing with fellow convoy leader: Crown

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By Erika Ibrahim in Ottawa

The Crown is seeking to revoke bail for Tamara Lich, a leader of the “Freedom Convoy,” after she appeared alongside a fellow organizer in an alleged breach of her conditions.

Lich was charged in February with mischief, obstructing police, counselling others to commit mischief and intimidation for her role in the massive protest against COVID-19 restrictions that gridlocked downtown Ottawa for more than three weeks.

She was released the next month with a long list of conditions, including an order not to communicate with key convoy organizers except through counsel or in the presence of counsel. She was also banned from using all social media.

Crown prosecutor Moiz Karimjee told an Ottawa court on Tuesday that Lich breached one of her conditions by being seen with fellow protest leader Tom Marazzo at a recent gala, where she accepted an award for organizing the protest.

He argued that she should be detained.

Lich’s lawyer, Lawrence Greenspon, said he will contest the revocation of Lich’s bail and seek her release with conditions.

Ottawa police Det. Chris Benson, who is the lead on Lich’s case, told the court he reviewed video of Lich and Marazzo appearing together at the awards gala.

Greenspon asked Benson if he knew of any other evidence that Lich and Marazzo communicated before or after the brief interaction in the video, which took place in “less than three seconds.”

He asked the detective if he was aware that some lawyers from the Justice Centre for Constitutional Freedoms were present, some of whom are acting as her lawyers in civil matters.

Benson said he believed a photograph showing Lich, Marazzo and others posing together at the award ceremony shows that she breached her conditions due to her physical closeness to him.

Lich monitored the hearing remotely from an Ontario detention centre, watching on video conference and listening in from a cellphone, her blond hair in a high bun.

Both Marazzo and Lich were key spokespeople of the winter convoy protest. Marazzo is also a leader of a group called Veterans 4 Freedom, which staged several rallies in Ottawa over the Canada Day weekend.

Police sought a Canada-wide arrest warrant for Lich for the alleged breach of her bail conditions and she was arrested last week in Medicine Hat, Alta., where she lives.

Benson said he oversaw Lich’s transport from Alberta to Ottawa after she was arrested.

Lich’s surety, whose identity is protected by a court-ordered publication ban, said they became aware of the photo of Lich and Marazzo a few days after the event, and immediately contacted Lich about it out of concern that a possible violation of bail conditions took place.

The surety explained that Lich assured them that legal counsel was present at the gala.

Greenspon pointed out the evidence brought against Lich to argue she broke the bail condition consists of a very brief congratulatory interaction between her and Marazzo, adding lawyers approved the photo and were just off-camera.

He argued Benson didn’t provide any evidence that contradicted the terms of the bail conditions.

“These actions were so minimal as to amount to not being prosecuted, let alone convicted,” he said.

The purpose of the bail condition was not to preclude the brief interaction and photo that took place, Greenspon said — rather, it was to prevent a similar event to the one that took place in Ottawa earlier this year. He argued the interactions in question do not risk reoffence.

The matter should have been brought to a judicial referral hearing or some other recourse rather than the Canada-wide warrant that has led to Lich being detained for nine days, he said, noting an email showing the Crown sought the expansion from an initial Ontario-wide warrant.

Justice of the Peace Paul Harris reserved his decision until the next court appearance on Friday.

Lich is charged for her role in the “Freedom Convoy” along with a co-accused, Chris Barber, who remains out on bail.

On Tuesday morning, Barber’s lawyer was granted a publication ban on court documents showing Barber’s cellphone communications, except for those with Lich.

This report by The Canadian Press was first published July 5, 2022.

This story was produced with the financial assistance of the Meta and Canadian Press News Fellowship.

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