If you liked Duffy and Gomeshi, you’re gonna love this

When it was announced that the high-profile trial of former Conservative Senator Mike Duffy would likely coincide with the 2015 federal election campaign, the anticipated courtroom grilling of Duffy and a parade of Conservative party and government insiders had the opposition and media salivating. There was little doubt that this public exposure of the inner workings of Canadian politics at the highest level would spell trouble for the Harper Conservatives at a crucial time in the government’s bid for re-election. It did, and they lost.

It’s strange how history so often repeats itself. Royal Canadian Navy Vice-Admiral Mark Norman is not as well known to the public as former television journalist Duffy, nor as outspoken or colourful, but Norman seems destined for equal renown, if not ignominy. The criminal trial of the former second-in-command of Canada’s military, accused of breach of trust for leaking cabinet secrets related to a multi-million-dollar shipbuilding contract, will be an unprecedented event in Canadian military history. The trial is set to begin on August 9, 2019 and last at least eight weeks, putting it smack in the middle of the next year’s federal election campaign, with the vote scheduled for October 21.

Given the import, drama, and complexity of the Norman case, it seems likely the trial will produce headlines throughout the campaign. With the potential disclosure of sensitive cabinet documents and a stream of government and military figures likely to give evidence, it promises to be at least as compelling as the Duffy trial, far more important in substance, and just as risky for a government seeking re-election.

Vice-Admiral Norman has spent the last 18 months under a cloud of suspicion created by allegations that he breached the public trust by leaking secret information to a CBC journalist and to Davie Shipbuilding of Levis, Quebec, a company the Harper government had hired as part of an unconventional contract to provide a much-needed supply ship to the Royal Canadian Navy.

The backdrop to the Norman case is Canada’s shambolic approach to military procurement, in which regional politics routinely takes precedence over the operational needs of the Armed Forces. Yet as appalling as this SNAFU is, it’s mainly an issue that riles Conservative supporters, not traditional Liberal voters. So the real electoral danger for the Trudeau Liberals lies in the manner of the prosecution of Vice-Admiral Norman and the verdict rendered in the court of public opinion.

As any journalist or political operative can attest, to get people to care about an issue remote from their daily experience you must put a human face to it. With 35 years of unblemished service to his country, Mark Norman could prove a very compelling and sympathetic character – and thus a Liberal nightmare.

The unsinkable Admiral Norman

Born in 1964 as the son of a major-general in the Canadian Army, Norman might have followed his father into the upper echelons of that branch of the Canadian Forces. Yet as a teenager Norman instead joined the naval reserves and trained as a diesel mechanic. Five years later he transferred to the regular navy and began a steady progression through the ranks, from mechanic to captain and eventually to commander of Canada’s Atlantic fleet. In June 2011 he was promoted to deputy commander of the Royal Canadian Navy, and two years later he was given full command of the service.

In that role Norman gained a reputation among Canada’s sailors as somebody who would speak up for the Navy and its needs. A 2014 naval business plan, obtained by Postmedia through an Access to Information request, quotes Norman as warning that “limited resources, financial and human, and competing priorities continue to test our ability to most effectively and efficiently deliver our mandate. I have made, and will continue to make, some very difficult decisions over the short term to effectively rebalance the [Navy’s] resources.” One of those difficult decisions was retiring two ancient supply vessels, HMCS Protecteur and HMCS Preserver: one a burned-out hulk after a devastating fire, the other unsafe due to its rust-weakened hull.

Appearing before the House of Commons Committee on National Defence in November 2014, Norman explained that as a result of delays in replacing the Navy’s only supply ships, it was “unable to support and maintain…ships at sea.” In other words, without a supply ship the Navy was crippled, and it was Norman’s job to deliver the bad news, argue for the defence of Canada’s vast coastal waters, and come up with a plan to fix the problem. This is the man the Trudeau Liberals have identified as a supposed menace to democracy, worthy of a criminal prosecution.

In any serious military power, the entire navy being rendered impotent for want of a couple of support ships would have been a scandal of the first order. In Canada it was largely met with shrugs. With permanent replacements for Protecteur and Preserver years away from delivery, the Harper government approved a stop-gap solution, dubbed Project Resolve, to lease an existing vessel and rapidly convert it for Navy use. Proposals for the $668 million contract were received from Davie, Irving Shipbuilding in Halifax and Seaspan in Vancouver.

In the summer of 2015 the government chose the Davie proposal, for a mixture of political, commercial and operational reasons. The Davie shipyard had missed out on the Harper government’s multi-billion-dollar long-term program to replace Canada’s aging fleet of warships; it had the capacity to tackle Project Resolve quickly; it wouldn’t be paid until the supply ship was delivered; and it was located in the riding of then-Conservative minister Steven Blaney.

A six-year-old commercial container ship, the Asterix, was leased from a Greek shipping company. The Asterix was eventually converted on time and on budget – a remarkable achievement for a Canadian military procurement project – and today is in service with the Navy.

The Navy springs a leak

Nevertheless, reporting by veteran Postmedia journalist David Pugliese and others had indicated that the unconventional project “ruffled feathers in the country’s shipbuilding industry” and unsettled some senior bureaucrats involved with traditional defence procurement. When the new Liberal government took office in the fall of 2015, it was immediately pressured to review the Asterix conversion. At a cabinet committee meeting in mid-November, it did just that. Within 24 hours the decision had been leaked to CBC reporter James Cudmore. His story and others that followed sparked heated reaction. Quebec Premier Philippe Couillard phoned Prime Minister Justin Trudeau to complain about putting Quebec jobs at risk, and the Shipbuilding Association of Canada publicly questioned the need for a review – given that no other Canadian shipyard had the immediate capacity to handle the Asterix project. Within two weeks, the rookie Liberal government was forced to overturn its decision.

The Royal Canadian Navy’s one and only supply ship, the leased Asterix.

It was an embarrassing climb-down, and it prompted an aggressive search for the source of the leak. Although several potential leakers were apparently identified, it seems that the investigation quickly focused on Vice-Admiral Norman. Just over a year later, in January 2017, General Jon Vance, Chief of the Defence Staff and Norman’s boss, suspended him from duty. There was no internal hearing and no explanation provided to the military – or to Canadians generally – as to why the number-two officer in the Armed Forces had been dumped.

Norman had been in regular contact with Spenser Fraser, a retired naval officer and former colleague of Norman’s who headed the Davie affiliate overseeing Project Resolve. The cabinet decision to delay the project, and the subsequent CBC story, prompted a flurry of emails about the decision – including some directly from Norman to Fraser.

It’s these emails that form the heart of the government’s case against Norman. They show Norman’s concern over the delay (sometimes using salty language), but it’s not clear they contain any information that wasn’t already known to Davie, or indeed to a number of people outside government.

In the huge trove of documents from the RCMP’s investigation of Norman, unsealed last year after a court challenge by several media organizations, there is no suggestion that Norman obtained any personal benefit from his actions or had criminal intent. He’s not even alleged to have actually leaked classified documents to anyone. (Norman’s lawyers claim the investigation suggests that an “assistant director of industrial benefits” at the Atlantic Canada Opportunities Agency supplied cabinet documents to an Ottawa lobbyist, who in turn passed them to the CBC’s Cudmore.)

Rather, the RCMP investigation alleges breach of trust in emails between Norman and Fraser which the Crown claims show he attempted “to influence decision-makers within government to adopt his preferred outcome” – of expediting the availability of a supply ship the Navy desperately needed, which to many Canadians will sound more like his job description than a criminal offence.

Cudmore could presumably shed light on who leaked what to whom, except that in January 2016, mere weeks after he broke the story, he landed a job in Defence Minister Harjit Sarjjan’s office.

‘Hannibal Lecter’ for the defence

On the face of it the charges against Norman seem surpassingly weak. But in light of the government’s apparent determination to make an example of him, and use all the formidable resources of the state to do so, he clearly needs a good lawyer. Therein lies the Trudeau Liberals’ second big problem: Norman has hired famed Toronto defence counsel Marie Henein to defend him. In what amounted to Canada’s 2016 celebrity trial-of-the-year, Henein successfully defended former CBC radio host Jian Gomeshi against charges of sexual assault and choking.

Born in Cairo to Lebanese parents, Henein moved with her family to Toronto when she was four. She later attended that city’s Osgoode Hall Law School and received her LL.M. from Columbia Law School. She articled under legendary Toronto criminal lawyer Edward Greenspan and in 2002 opened her own law firm. The National Post has called her the “most high profile criminal defence lawyer in the country.” Canadian Lawyer magazine named her one of the Canada’s 25 most influential practitioners and a “go-to” lawyer for high-profile accused – with good reason.

While her defence of Gomeshi made Henein widely known, it was just one in a string of courtroom victories she’s racked up since the late 1990s. Among the more notable: former Nova Scotia premier Gerald Regan acquitted on sexual-misconduct charges, and charges withdrawn against former Ontario attorney general Michael Bryant after he was accused of criminal negligence in car accident that led to the death of a bike courier.

Henein’s approach is meticulous, probing and aggressive, leaving no question unasked or e-mail ignored in the search for exculpatory evidence. She’s been called a “shark” and the “Hannibal Lecter” of defence lawyers – and that was just by two of her clients. She can be devastating in cross-examination – and likely won the Gomeshi case with these skills. Moreover she clearly understands the importance of contesting high-profile cases not just in the courtroom, but also in the media. She has already brought that savvy to bear in the Norman case. At his pre-trial hearing in Ottawa earlier this fall, he appeared before the cameras resplendent in full dress uniform with a chest full of medals, reminding everyone of his rank and illustrious career.

In April 2015 Vice-Admiral Mark Norman, former Commander of the Royal Canadian Navy, was presented with the United States Armed Forces Legion of Merit award at a ceremony in Washington D.C.  (Image: U.S. Navy photo by Chief Mass Communication Specialist Julianne Metzger)

At the heart of Henein’s defence of Norman lies a massive request for documents – potentially 135,000 according to the Crown. They include cabinet papers, communications between General Vance and the Prime Minister’s Office, Minister Sajjan and other senior officials. Henein is also requesting transcripts or minutes of all briefings by any Department of National Defence official to the Prime Minister’s Office and Privy Council Office. The government, unsurprisingly, is resisting disclosure of some documents, and may try to declare them confidential cabinet or ministerial papers. A five-day hearing on the issue has been scheduled for December 12, after which a judge will decide who gets to see what.

Of particular interest to Henein’s team are documents that may show who in cabinet led the effort to review the Davie contract. The defence contends Treasury Board President and Halifax MP Scott Brison was behind it, at the urging of Irving Shipbuilding. None of these allegations have been proven in court, and Irving has consistently denied all suggestions of political interference. Accused in the House of Commons of lobbying on behalf of Irving, Brison insisted he was simply doing his job in overseeing the expenditure of tax dollars. “We needed to perform some level of due diligence to ensure the proper expenditure of taxpayers’ funds,” he told MPs. “That’s what I did – my job.”

Precisely who was doing his job on behalf of the taxpayer – Minister Brison or Vice-Admiral Norman – will no doubt be a central issue during the trial. Unfortunately for the government, the answer seems far from clear.

Henein also has Prime Minister Trudeau firmly in her sights, because well before the Vice-Admiral was charged with any offence, he told the House of Commons that Norman would eventually face trial. How could the PM have known that?

All of this is clearly a problem of the Liberals’ own making. A more experienced government might not have been so quick to launch an unprecedented legal battle it couldn’t easily control. This is the first time in Canadian history a leak from a cabinet meeting – a routine occurrence in Ottawa, or any provincial capital or city hall – has resulted in a criminal prosecution, and it’s far from clear why this particular leak triggered charges against Norman and no one else.

With evidence from the government’s own internal investigation that there were multiple leaks from cabinet’s discussion of the Asterix project, Norman’s lawyers intend to argue that singling out the vice-admiral is an attempt to “scapegoat” a decent man trying to do his best on behalf of the Navy in the face of blatant political chicanery. By contrast, the government’s lawyers will attempt to paint Norman as a subverter of democracy, and a criminal to boot.

That seems a tall order. But the Liberals have painted themselves into a corner. To abandon the prosecution at this point would be tantamount to admitting it was unwarranted in the first place, and potentially invite even more scrutiny of their actions and motives. Either way, Conservative campaign planners are undoubtedly relishing the government’s discomfort and plotting sweet revenge for the drubbing they took over “Duffygate”.

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