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Mark Norman’s lawyers target government over solicitor-client privilege claims


OTTAWA — Vice-Admiral Mark Norman’s legal team accused the federal government on Tuesday of hiding behind solicitor-client privilege to prevent the release of documents they believe will prove the case against their client has been tainted by political interference.

Norman’s lawyers took aim at the government’s decision to label dozens of documents, including several memos to Prime Minister Justin Trudeau from the country’s top bureaucrat, Michael Wernick, as solicitor-client privilege.

They also want a chart purportedly showing how government officials determined Norman passed cabinet secrets to a Quebec shipyard and a CBC journalist in 2014-15 and not what his lawyers describe as “simply information of a confidential nature.”

In a document submitted to the court on Tuesday, Norman’s lawyers said the chart represented “the linchpin to the Crown’s case and undermining it is central” to their ability prove the suspended military officer’s innocence.

The government wants to keep the memos, chart and numerous other documents secret, with lawyers from the Department of Justice arguing during a pre-trial hearing that they represent legal advice and should thus be protected.

Norman’s lawyers accused the government of applying the label too broadly, pointing out neither Trudeau nor Privy Council clerk Michael Wernick are lawyers, and asked the court to determine whether the documents were truly privileged.

Even if the documents were properly labelled, Norman’s legal team added, the court can — and should — lift the privilege if their client’s innocence is at stake.

The back and forth represented the latest twist in Norman’s high-profile legal drama, which has dragged on for more than two years and is currently scheduled to culminate in a full trial starting in August and running through the election.

Justice Heather Perkins-McVey is responsible for determining whether the privilege has been properly applied and, if so, whether the documents should nonetheless be disclosed to ensure Norman gets a fair trial.

Norman served as the military’s second-in-command before being suspended and charged with breach of trust for allegedly leaking government secrets to influence cabinet’s decision-making on a $700-million shipbuilding contract.

He has denied any wrongdoing. His legal team has alleged that the case against him is politically motivated and is trying to get access to the requested documents to officially make that case in an effort to get the charge tossed out.

Norman’s lawyers scored a partial victory on Tuesday when Justice Department lawyer Robert MacKinnon revealed that the government had accidentally disclosed some records labelled legal advice but would not fight to keep them secret.

They also grilled Patrick Hill, director of operations at the Privy Council Office, the department that supports the prime minister, on why solicitor-client privilege had been claimed for a variety of documents related to Norman’s case.

Asked about one of the memos sent to Trudeau from Wernick, Hill testified the document was in fact authored by lawyers within the Privy Council Office and sent to the prime minister through the clerk — as is common practice.

“All memos to the prime minister are under the pen of the clerk,” Hill told the court in response to a question from Norman’s lead lawyer, Marie Henein. “That includes legal advice.”

The two also sparred over what constituted solicitor-client privilege, particularly as Henein questioned Hill about an August 2017 email chain from PCO lawyers updating the department’s communications section about the case.

“Is it the provision of legal advice or is it an update as to what’s happening to the communications department?” Henein said of the emails. “Just because a lawyer says it doesn’t make it privileged, doesn’t make it solicitor-client communication, even if it is a client.”

“This is not legal advice,” Hill said, before adding: “My understanding is that it is still subject to solicitor-client privilege by virtue of the relationship between the client and the counsel.”

At one point, Henein asked whether former attorney general Jody Wilson-Raybould would have been copied on any of the memos or legal advice provided to the prime minister about Norman’s case.

Hill, who will return to the witness box on Wednesday, said he was unaware of Wilson-Raybould being copied on any of the documents.

— Follow @leeberthiaume on Twitter.

Lee Berthiaume, The Canadian Press

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Trudeau to push trade pact in EU leaders’ summit as France moves ahead on CETA



MONTREAL — Lawmakers in France begin their ratification of the comprehensive trade agreement between the European Union and Canada as Prime Minister Justin Trudeau welcomes the leaders of the 28-country bloc to Montreal today.

Trudeau has been pushing hard for a win on trade and foreign policy after two difficult years marked by a rough renegotiation of the North American Free Trade Agreement with the Trump administration and the deterioration of political and trade relations with China.

Trudeau will talk up the merits of the Comprehensive Economic and Trade Agreement, or CETA, with European Council President Donald Tusk and European Commission President Jean-Claude Juncker in a series of events in Montreal over the next two days.

But Wednesday’s legal development when the French National Assembly begins its consideration of France’s ratification bill is also a prime focus for Canada’s Liberal prime minister, who will be fighting a federal election this fall.

Sources in France and Canada, who were not authorized to speak publicly about the talks, say Trudeau lobbied French President Emmanuel Macron for more than a year to introduce the bill, and that those efforts finally paid off last month in Paris during their most recent face-to-face meeting.

Almost all of CETA — in excess of 90 per cent — went into force in September 2017 under what is known as provisional application, but individual ratifications by EU member countries will bring it fully into effect.

That would mean a win for the international trading order that has been under assault by U.S. President Donald Trump.

“It’s an essential step. We’re very pleased with our co-operation with the French government,” International Trade Minister Jim Carr said in an interview.

Carr will be meeting his EU counterpart Cecilia Malmstrom in Montreal. He said the French move towards ratification is a significant step in Canada’s broader goal of diversifying Canada’s export markets.

Trudeau was in Paris in early June after attending the 75th anniversary commemorations of D-Day in France and Britain, and he and Macron emerged with news that France would move forward with CETA’s ratification. The introduction of the bill in the National Assembly is a first step in a process that the French government hopes will lead to full ratification by the end of 2019.

Macron and Trudeau have talked about the agreement repeatedly — in Paris in April 2018, in a telephone conversation a year later, and other face-to-face meetings. Macron is a staunch Europhile and open supporter of CETA, but he has had to tread cautiously because of populist opposition to trade deals in France and across Europe.

Canada has lobbied French lawmakers, businesspeople and farmers, an effort that included more than two dozen visits to various regions of France by Isabelle Hudon, the Canadian ambassador.

Trudeau also made a direct appeal to French lawmakers in an April 2018 speech to the National Assembly, the first time a Canadian prime minister addressed that body.

“Let us ask ourselves this question: If France cannot ratify a free-trade agreement with Canada, what country can you imagine doing it with?” Trudeau asked.

CETA gives Canadian businesses preferred access to 500 million European consumers, and a $24 trillion market. In 2018, Canada’s exports to the EU increased by seven per cent to more than $44 billion.

Mike Blanchfield, The Canadian Press

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Uncompetitive nomination races weaken parties and Canadian democracy, study warns



OTTAWA — Nominations for federal elections are strikingly uncompetitive and opaque, according to a new study, which says that has profound consequences for Canadian democracy.

New research by the Toronto-based Samara Centre for Democracy shows only 17 per cent of more than 6,600 federal candidates from 2003 to 2015 faced competitive nomination races, while 2,700 candidates were directly appointed by parties.

“If you see the nomination as a moment in a chain of democratic moments” leading to the election of a member of Parliament, said Michael Morden, the director of research at Samara, “I think it’s notable that, in an overwhelming majority of cases, there’s no real decision being made by local people.”

Morden said through exit interviews with MPs Samara has found there is “broad, quiet understanding” in political circles of the deficiencies of the nomination process. 

But he said most Canadians have little access to or ability to scrutinize the “black box” of party nominations, despite the stake they have in how parties run their internal elections.

Political parties are private organizations, the Samara study says, but they’re also “public utilities” that have a profound effect on Canadian democracy.

And a lack of competition might signal a worrying disconnect with the Canadian public, the study suggests.

There are several reasons the study proposes for why races are so often uncompetitive. Snap elections account for some of it, while rules that benefit incumbents are also a factor. Then’s there’s the reality that many local party associations are just too disorganized or small to attract multiple candidates.

But the trend extends even to larger parties that are competitive across the country, Morden said.

“In our mind, that is still a stunning lack of competition,” he said.

Beyond the lack of competition, the study also found nominations rules also have significant effects on the diversity of nomination candidates and, consequently, the diversity of members elected to the House of Commons.

Morden noted parties occasionally justify appointing candidates on the basis of diversity, but this was not borne out in the data.

In particular, the study suggests appointed candidates were less likely to be from visible-minority or Indigenous backgrounds.

The issue of female representation in the nomination processes was even more stark.

In line with findings that women win elections at around the same rate as men, the study suggests female nomination candidates are just as likely to win internal races as men are.

But just 28 per cent of nomination contestants covered by the study were women.

“That shifts the focus right back to recruiting, to the general openness of the process, to the intangible factors that cause some people to find their way in and others to self-select out or to never have the option,” Morden said.

The study found that longer nomination races and races that didn’t require monetary investment were correlated with higher female participation.

Morden said parties essentially close themselves off from a majority of Canadians through rules that make it more difficult to participate in nomination processes: short races, monetary costs, lack of information and protections for incumbents.

The study recommends corresponding changes in party policies: standard opening and closing dates for races, the obligation to report the number of votes candidates receive, and holding contests even where there are incumbent MPs.

These changes are in the best interests of parties that want to stay internally strong and remain connected with the Canadian public, Morden argued.

The study also considers a potentially expanded role for Elections Canada in administering or regulating the races, something Morden acknowledges is not popular among the parties.

Parties can also be reticent to even provide information about their nomination processes, Morden said. For example, only the Green party provided information about how many candidates it screened out of its nominations in 2015.

“There’s just not a culture of openness,” Morden said. “The nomination process is still seen as a very internal one, rather than a vehicle for mass political engagement.”

The first step in a reform process is convincing Canadians to care, Morden said, because otherwise “you’re not going to convince parties to do much.

“It’s hard to regulate parties, because parties make the law.”

Christian Paas-Lang, The Canadian Press

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july, 2019

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