VAdm Norman - Supply Ship contract: Legal fight

[garb811]

So where is the evidence that the admiral would be subjected to admin action? Did he get an IC? RW? Anything? Are the MP’s involved? Where is the paperwork?

I don't have the Military Administrative Law Manual at home but there is a section that expands on the following QR&O should you wish to read it:

Section 4 - Authority to Relieve a Member from the Performance of Military Duty
19.75 - RELIEF FROM PERFORMANCE OF MILITARY DUTY

(1) This article does not apply to an officer or non-commissioned member to whom article 101.09 (Relief from Performance of Military Duty – Pre and Post Trial) applies, nor to a military judge, the Provost Marshal, the Director of Military Prosecutions or the Director of Defence Counsel Services.

(2) For the purpose of this article, the Chief of the Defence Staff and an officer commanding a command are the authorities who may relieve an officer or non-commissioned member from the performance of military duty.

(3) Notwithstanding paragraph (2), only the Chief of the Defence Staff may relieve an officer or non-commissioned member from the performance of military duty, if that member is on active service by reason of an emergency.

(4) An authority may relieve an officer or non-commissioned member from the performance of military duty if, in a situation other than one provided for under paragraph 101.09(3), the authority considers that it is necessary to relieve the member from the performance of military duty to separate the member from their unit.

(5) The authority who relieves an officer or non-commissioned member from the performance of military duty shall order that the member return to duty when the circumstances giving rise to the decision to relieve the member from the performance of military duty are no longer present.

(6) Prior to determining whether to relieve an officer or non-commissioned member from the performance of military duty, the authority shall provide to the member

    the reason why the decision to relieve the member from the performance of military duty is being considered; and
    a reasonable opportunity to make representations.

(7) The authority who relieves an officer or non-commissioned member from the performance of military duty shall, within 24 hours of relieving the member from the performance of military duty, provide the member with written reasons for the decision.

(8) An officer commanding a command who relieves an officer or non-commissioned member from the performance of military duty or orders that the member return to duty, shall make a report in writing to the Chief of the Defence Staff setting out the reasons for the decision.

(9) An officer or non-commissioned member shall cease to be suspended from duty on the coming into force of this article.

(M) [5 June 2008 – (1); 1 June 2014 – (1) and (4)]
NOTES

(A) Relief from the performance of military duty is not to be used as a form of discipline or as a sanction. Action to relieve a member should only be considered after concluding that other administrative means are inadequate in the circumstances. In determining whether to relieve a member, an authority must balance the public interest including the effect on operational effectiveness and morale, with the interests of the member. A commanding officer must monitor each case to ensure that appropriate action is taken if there are changes in the circumstances on which the decision to relieve a member was based.

(B) Although a member is relieved from the performance of military duty, they are required to obey all lawful commands, including an order to attend before a service tribunal or a board of inquiry.

(C) As an example of the application of this article, a commander who has been removed from command for leadership deficiencies and whose presence at any unit would be disruptive to operational effectiveness, could be relieved from the performance of military duty.

(C) [9 January 2001]

The CDS met the administrative requirements for this when he provided the VCDS the letter. 

The Proud Boys action was more egregious than Adm Norman and it was handled administratively in lightening speed compared to this event.

Hardly.  The allegation that he leaked Cabinet Confidences is a much, much bigger deal.  If one of those goes astray in the mail, even if unopened, it's investigated as a Security Breach, or at least it used to be.  And, of course, the fact there was no criminal investigation tied into the Proud Boys issue meant there was no need to hold any admin investigation in abeyance pending the outcome of that.

I get it, some people on here like him, obviously know him personally.  Think that he would never do what he is being investigated for. 

You may be right, and I really hope you are.  But at the end of the day, I can give you a laundry list of others, including senior officers, whose superiors, friends, peers and subordinates would have said the same thing about them.  Right up until they were convicted, and some even after that.

 

[suffolkowner]

I don't have the Military Administrative Law Manual at home but there is a section that expands on the following QR&O should you wish to read it:
The CDS met the administrative requirements for this when he provided the VCDS the letter. 
Hardly.  The allegation that he leaked Cabinet Confidences is a much, much bigger deal.  If one of those goes astray in the mail, even if unopened, it's investigated as a Security Breach, or at least it used to be.  And, of course, the fact there was no criminal investigation tied into the Proud Boys issue meant there was no need to hold any admin investigation in abeyance pending the outcome of that.

I get it, some people on here like him, obviously know him personally.  Think that he would never do what he is being investigated for. 

You may be right, and I really hope you are.  But at the end of the day, I can give you a laundry list of others, including senior officers, whose superiors, friends, peers and subordinates would have said the same thing about them.  Right up until they were convicted, and some even after that.

You would think that enough time has passed to gather evidence of wrongdoing by now

 

[garb811]

You would think that enough time has passed to gather evidence of wrongdoing by now

Who, RCMP?  If you believe the press, they've handed it off to the Crown and it looks like they've asked for supplemental interviews as there are reports that people are being re-interviewed.  There is nothing unusual or nefarious about that btw.

 

[dapaterson]

What's this following process and confirming information before laying charges (or not)?

 

[ballz]

You would think that enough time has passed to gather evidence of wrongdoing by now

They already have evidence of wrongdoing.... what has been already made public is evidence, questionable professionalism at best from the communications I recall reading*. Enough evidence to establish proof beyond reasonable doubt is another thing..... or at least enough evidence that a judge doesn't throw the case out which would pretty much show that it was a witch hunt.

*Going to go back and take a second read over of them now since this has faded from my memory. My perspective may feel different one way or another.

Whenever/if the truth ever sees the light of day it will be well worth the read. 

Indeed.

 

[Humphrey Bogart]

I'm not sure we read the same document.  Specifically, pg 81 lists the 10 (or 12, depending on how you slice it) missions that the CAF must be able to conduct concurrently and includes specific statements of size.  We have never had that before, and it is perhaps the key element of SSE.

I see the new Defence Policy as being status quo in nature.  I'm with OGDB in that the numbers in the policy are essentially meaningless because they aren't tied to any sort of actual tangible asset. 

Contrast this with the French:

- ability to deploy a joint reaction force of 2,300 on short notice - French refer to this in GUÉPARD as an Airborne Battlegroup.  This was exercised in Mali.

- ability to deploy up to a 15,000 person division in a single overseas deployment.

- maintain 24/7 strategic deterrent i.e. Nuclear Response

- ability to deploy a naval carrier task group.  Their White Paper asserted that sustaining this would require collaboration with the UK bringing Lancaster House treaties in to practice.  This was most recently exercised against ISIS following the Charlie Hebdo attacks.

The new Defence Policy is lengthy but there is very little ambition in it.  Especially considering just a few years ago i.e. 2010 the CAF conducted three major operations OP PODIUM, OP ATHENA and OP HESTIA simultaneously.

They already have evidence of wrongdoing.... what has been already made public is evidence, questionable professionalism at best from the communications I recall reading*. Enough evidence to establish proof beyond reasonable doubt is another thing..... or at least enough evidence that a judge doesn't throw the case out which would pretty much show that it was a witch hunt.

*Going to go back and take a second read over of them now since this has faded from my memory. My perspective may feel different one way or another.

Indeed.

Yah, some of the leaked correspondence made the VAdm look like a bit of a jerk tbh.  Especially the emails where he is openly chastisizing some of the senior bureaucrats and political bosses to who are essentially corporate shills. 

 

[FSTO]

I don't have the Military Administrative Law Manual at home but there is a section that expands on the following QR&O should you wish to read it:
The CDS met the administrative requirements for this when he provided the VCDS the letter. 
Hardly.  The allegation that he leaked Cabinet Confidences is a much, much bigger deal.  If one of those goes astray in the mail, even if unopened, it's investigated as a Security Breach, or at least it used to be.  And, of course, the fact there was no criminal investigation tied into the Proud Boys issue meant there was no need to hold any admin investigation in abeyance pending the outcome of that.

I get it, some people on here like him, obviously know him personally.  Think that he would never do what he is being investigated for. 

You may be right, and I really hope you are.  But at the end of the day, I can give you a laundry list of others, including senior officers, whose superiors, friends, peers and subordinates would have said the same thing about them.  Right up until they were convicted, and some even after that.

That same cabinet that leaks federal budgets, critical national trade details, federal provincial funding agreements. That same cabinet? Its been proven time and time again that cabinet secrecy is about as solid as swiss cheese. IMO the reason there has been no charges laid is that the cabinet realizes it will be roasted by any judge worth their salt if it ever gets that far. 

 

[Oldgateboatdriver]

From Yes Minister: "Sir Humphrey: The ship of state, Bernard, is the only ship that leaks from the top".

The CDS met the administrative requirements for this when he provided the VCDS the letter.

The letter referred to in the administrative rule you quote is not the wide distribution one whereby CDS advised everyone of what he did and was made public. The letter at issue has been seen by nobody but Adm Norman and his lawyer. It is therefore not possible to come to the fully formed conclusion that the administrative requirements have been met.

To positively conclude, one would have had to be privy to all that occurred in the CDS office from the moment the RCMP informed him of their investigation and the moment he actually informed the VCDS of his decision. On would have to have seen all the documents the CDS reviewed, the information he sought from various sources, the moment he informed the VCDS before making a final decision, how much time and real opportunity he gave to the Adm. to actually provide explanations of his behaviour - if any - before making his decision. And one would have had to be in the mind of the CDS to figure out what other administrative measures he considered and rejected as inadequate and how he balanced the public interest, operational effectiveness, morale and the Admiral's own interests in all this.

Note here everyone, the mention of public interest - not the political interest of the party in power. To draw once again from the font of knowledge that is Yes Minister, in one episode, Hacker makes a politically damaging statement in a BBC interview and with the help of Humprey, tries to convince the BBC to  refrain from airing it. Humphrey points out that one valid reason is showing the BBC that it is against public interest to air the piece: "Hacker: Well, I was elected to represent the public, and it is in my interest that it not air - so it is in the public interest. Humphrey: Well, that's novel argument - we haven't tried that one with them yet". 

I don't have the Military Administrative Law Manual at home

Administrative law applicable to the military is the same administrative law as applicable to all aspects of government. Unlike disciplinary law, which has military form, Administrative law does not concern itself with the actual administrative rules, which can vary from department to department and from the military down to a municipal government. Administrative law is that branch of judicial law which aims at keeping the feet of public servants, officials and elected, to the fire of the rules they themselves have adopted to guide their conduct vis-a-vis the citizenry. It has also been compared to legal guerrilla warfare between the courts and the executive, as the later - when it controls the legislative - constantly tries new ways to write rules that will "protect" its administrative decision from being reviewed by the courts, and the courts constantly give those rule due consideration but clearly indicate that there is always a point where they will intervene to protect citizens from dishonest or clearly unfair application of the rules, even when "protected" from court review.

The allegation that he leaked Cabinet Confidences is a much, much bigger deal. 

No it's not a bigger deal: The Proud Boys incident was fully seen by the public and a public relations incident for the CAF that was widespread knowledge in Canada as result of the MSM diffusing it over and over again. There was an immediate negative consequence for the CAF. In the case of the "cabinet leak", while the nature of the Cabinet discussion made its way into the papers, it was not presented in any way so as to pin the blame for it on the CAF at all. If the CDS had not done anything, it would have remained an unknown, at least until the VCDS' home was raided, but even then not public knowledge of the nature of the facts. But in my mind, even then, the public could not care less. Look: does the public care that the other potential leaker identified - a civil servant protected by Union rules - is still working as if nothing had happened and doesn't even appear to be investigated any further. No action anywhere by the CDS and this matter would have died in the public in two days max.

If one of those goes astray in the mail, even if unopened, it's investigated as a Security Breach, or at least it used to be.

I don't believe this to be correct. First of all "Cabinet confidences" don't travel by mail - we are not talking about "classified documents" here - they are composed of the actual discussions behind closed doors and written advice to the various ministers from their civil servants. This advice is never mailed - it's handed directly to the ministers in big binders where it is assembled.

Second of all, the said "confidence" are not national secrets and are not investigated (in the extremely extremely rare case they ever are- which is infinitesimal compared to the number of leaks - to the point where it is the actual investigation in this case that is abnormal) as Security Breaches, which they are not. They are, in the rare cases it happens investigated as breaches of employment contracts, so that the person responsible can be fired.

 

[BeyondTheNow]

I encourage the evolution/debate of this thread--it's very interesting. However, tone is starting to go south, I'm stepping in before things go downward further.

Keep it civil and don't make it personal.

Staff

 

[Oldgateboatdriver]

Acknowledged, BTN.

Post modified accordingly.

Apologies to all.

 

[brihard]

I'll offer a few thoughts, without commenting inappropriately or speculatively on the specifics of this case...

The RCMP unit investigating this, Sensitive and International Investigations, focuses almost exclusively on high profile in cases with considerable sensitivity and import. Their investigations are long, slow, and generally pretty meticulous. Many of their investigations are briefed on a frequent basis directly at the level of the RCMP commissioner.

The government doesn't get to simply 'make' the RCMP or crown do anything regarding an investigation. That would be inappropriate and quite possibly illegal depending on circumstances. There is a separation between the government and the justice system for a lot of good reasons. Avoiding political interference in awkward, sensitive, or embarrassing files is just one.

The role of the RCMP in this is to determine facts, follow up on evidence and leads, and to determine if they feel there are grounds to lay charges under the Criminal Code or other federal statutes. If they feel that they have sufficient grounds for such charges, they will then refer the matter to crown so that crown can review, request further follow ups or clarification, and generally speaking get the disclosure ready so that it can be provided promptly to defense in the case of charges.

If and when charges are laid, a clock starts. Trial has to occur relatively promptly or the case gets thrown out as a charter breach. 18 months for provincial court, 30 months for superior court. It may sound like a lot of time, but it's not. This is part of why crown wants to dot all 'i's and cross all 't's, and have disclosure ready to hand to defense.

Police will refer potential charges when they feel they have them. Crown will then further filter, and will generally toss anything that they don't think hits 'beyond reasonable doubt', because that is what must be proven in court. This is the gap often encountered in law enforcement and prosecution between 'what we know' versus 'what we can prove'. I have no personal knowledge of 'know/prove' in the Norman file, these are just general explanations.

There is on the public record a lengthy Information to Obtain a search warrant that was filed by RCMP in order to get a search warrant against Adm. Norman. This ITO is a sworn document that outlines much of the case to that point in time. To grant a warrant, a judge or justice must be convinced based on that sworn information that there are reasonable grounds to believe that an offense has taken place, that there are reasonable grounds to believe that there are things, data, documents etc that will afford evidence of that offense, and that there are reasonable grounds to believe that those things, data, documents etc are to be found in the place(s) or thing(s) to be searched. An ITO does not prove anything, but it gives a very good idea of what police know at a point in time. An ITO must have full, fair, and frank disclosure of what is known at that point in time that is both inculpatory and exculpatory vis a vis the suspect. The contents of the normal ITO have been covered by multiple media outlets. The ITO alleges offences under S.122 (breach of trust) of the Criminal Code, as well as offences under 4(1)(a) and 4(4)(b) of the Security of Information Act, and the ITO requests a search of Norman's home to attempt to lcoate such evidence.

In January 2017, Adm. Norman's house was searched. Subsequently to that and presumably further investigation, in the summer of 2017, RCMP referred the file to crown to determine if charges would be laid.

So- conclude from all that what you will. A few other thoughts:

Criminal and other federal charges are not the only potential consequence of the sorts of things that are alleged. In order to be employable, unquestionably any senior military member must maintain a security clearance. Allegations of breach of trust and mishandling or outright leaking information are of concern to departmental security, who will do their thing quite independently of any political or media hoopla. They don't care about all that- they just determine if a person, given everything known or reasonably believed/suspected, should be cleared to handle and access classified or designated information. There isn't really a burden of proof or due process necessary in this, at least until the point where a person files a grievance in the case of loss of security clearance. The loss of a security clearance in and of itself would be more than sufficient to relieve an affected individual of their duties. It is possible that this is a factor in Adm. Norman's situation. I neither know nor will I speculate whether that is in fact the case.

 

[FJAG]

Administrative law applicable to the military is the same administrative law as applicable to all aspects of government. Unlike disciplinary law, which has military form, Administrative law does not concern itself with the actual administrative rules, which can vary from department to department and from the military down to a municipal government. Administrative law is that branch of judicial law which aims at keeping the feet of public servants, officials and elected, to the fire of the rules they themselves have adopted to guide their conduct vis-a-vis the citizenry. It has also been compared to legal guerrilla warfare between the courts and the executive, as the later - when it controls the legislative - constantly tries new ways to write rules that will "protect" its administrative decision from being reviewed by the courts, and the courts constantly give those rule due consideration but clearly indicate that there is always a point where they will intervene to protect citizens from dishonest or clearly unfair application of the rules, even when "protected" from court review.

Almost ff topic: here but in general:

Administrative law is an expansive and complex subject area that focuses on the “the statutes, principles and rules that govern the operations of government. It is concerned with ensuring that government decision-makers act with authority in a valid manner when making decisions that affect people’s interests. Within the context of Canadian society, a government is precluded from acting without being properly authorized by the Constitution, statutes or the Crown Prerogative.

Military Administrative Law is that part of Admin Law that concerns and impacts on the military. It goes well beyond such matters as "judicial" law and concerns a wide body of matters such as Boards of Inquiry and Summary Investigations; public and non public property; access to information; elections in a military context; promotions; occupational transfers etc. Basically anything and everything that we do that flows from a statute or regulation or subordinate processes (which is just about everything).

The "judicial" context of administrative law involves the fact that decision makers acting within administrative matters must exercise procedural fairness and that decisions made or actions taken are subject to judicial review by appropriate civilian courts.

:cheers:

Sorry for being nitpicky.

 

[garb811]

That same cabinet that leaks federal budgets, critical national trade details, federal provincial funding agreements. That same cabinet? Its been proven time and time again that cabinet secrecy is about as solid as swiss cheese.

Is that what we want our General/Flag officers to aspire to?  Stooping to the level of a politician?  Perhaps might be time for a few people to refresh themselves on the Statement of Defence Ethics. 

A few that jump out at me (edited for brevity and emphasis)...

Ethical Principles and Expected Behaviours
...

3. Obey and Support Lawful Authority

At all times and in all places, DND employees and CAF members shall uphold Canada’s parliamentary democracy and its institutions by:

- Respecting the rule of law.
- Carrying out their duty and their duties in accordance with legislation, policies and directives in a non-partisan and objective manner.

Specific Values and Expected Behaviours

1. Integrity

DND employees and CAF members shall serve the public interest by:

- Acting at all times with integrity, and in a manner that will bear the closest public scrutiny; an obligation that may not be fully satisfied by simply acting within the law.
...

2. Loyalty

DND employees and CAF members shall always demonstrate respect for Canada, its people, its parliamentary democracy, DND and the CAF by:

- Loyally carrying out the lawful decisions of their leaders and supporting Ministers in their accountability to Parliament and Canadians.
- Appropriately safeguarding information and disclosing it only after proper approval and through officially authorised means.

...

Last I checked, the VCDS was still a member of the CAF and bound by these principals, values and expected behaviours just as much as anyone else.

IMO the reason there has been no charges laid is that the cabinet realizes it will be roasted by any judge worth their salt if it ever gets that far.

I've been dealing with the justice system, both military and civilian, for 32 years.  One of the first things I learned was to never assume the outcome of anything.

 

[garb811]

From Yes Minister: "Sir Humphrey: The ship of state, Bernard, is the only ship that leaks from the top".

The letter referred to in the administrative rule you quote is not the wide distribution one whereby CDS advised everyone of what he did and was made public. The letter at issue has been seen by nobody but Adm Norman and his lawyer. It is therefore not possible to come to the fully formed conclusion that the administrative requirements have been met.

To positively conclude, one would have had to be privy to all that occurred in the CDS office from the moment the RCMP informed him of their investigation and the moment he actually informed the VCDS of his decision. On would have to have seen all the documents the CDS reviewed, the information he sought from various sources, the moment he informed the VCDS before making a final decision, how much time and real opportunity he gave to the Adm. to actually provide explanations of his behaviour - if any - before making his decision. And one would have had to be in the mind of the CDS to figure out what other administrative measures he considered and rejected as inadequate and how he balanced the public interest, operational effectiveness, morale and the Admiral's own interests in all this.

It is probable that nobody on this board was present during that conversation.  But is it is reasonable to conclude that the CDS went off the rails and arbitrarily suspended him without following the policy or, is it more reasonable to presume he followed the policy to the letter given who it affected and the consequences of that action. 

It has been reported that the CDS consulted JAG prior to making a decision, that he had been briefed in on the allegations by RCMP on 9 Jan and although he informed VAdm Norman he was relieving him of his military duties later that day, did not make anything official and public until 13 Jan giving VAdm Norman ample time to make representation if he had desired...and for all we know, he might have.

The CDS is also on the public record as saying, and remember his is coming from a guy who had people die under his command in Afghanistan,

“That was one of the hardest days of my career,” Vance told reporters following a speech to a defence conference.
“I’ve known Admiral Norman my entire life. To have my vice-chief leave because I had to do it — I had to do it — but to have him leave was a bad day for me and a bad day for all of us,” he said.
“But sometimes the right thing to do, hurts. In this case, it did. It was the right thing to do and the man is owed the decency of silence until you know the facts,” Vance said.

None of this screams to me a CDS who went rogue and arbitrarily fired his #2.  Or even of a CDS who was feeling the heat from his political masters to react in a certain way. If anything it indicates to me that if he felt he had any other option what so ever, he would have taken it.

Note here everyone, the mention of public interest - not the political interest of the party in power. To draw once again from the font of knowledge that is Yes Minister, in one episode, Hacker makes a politically damaging statement in a BBC interview and with the help of Humprey, tries to convince the BBC to  refrain from airing it. Humphrey points out that one valid reason is showing the BBC that it is against public interest to air the piece: "Hacker: Well, I was elected to represent the public, and it is in my interest that it not air - so it is in the public interest. Humphrey: Well, that's novel argument - we haven't tried that one with them yet". 

I see actions that are in the RCNs interest.  I see actions that are very much in the interests of Davie Shipbuilding.  And I also see actions which are very much counter to the Governments (no matter which party is in power) and CAF's interests writ large.  But most of all I see a relationship between VAdm Norman and the head of the project that was clearly much, much closer than what is now trying to be portrayed as a normal exchange between the Comd RCN and any other member of the business community.

Administrative law applicable to the military is the same administrative law as applicable to all aspects of government. Unlike disciplinary law, which has military form, Administrative law does not concern itself with the actual administrative rules, which can vary from department to department and from the military down to a municipal government. Administrative law is that branch of judicial law which aims at keeping the feet of public servants, officials and elected, to the fire of the rules they themselves have adopted to guide their conduct vis-a-vis the citizenry. It has also been compared to legal guerrilla warfare between the courts and the executive, as the later - when it controls the legislative - constantly tries new ways to write rules that will "protect" its administrative decision from being reviewed by the courts, and the courts constantly give those rule due consideration but clearly indicate that there is always a point where they will intervene to protect citizens from dishonest or clearly unfair application of the rules, even when "protected" from court review.

Uhhh...thanks for the lecture.  I think?  You didn't tell me anything I didn't already know though.

I was referring to a specific military manual published by the JAG that has been around since at least 2008, in its current form anyway.  I consult it often when I am conducting administrative processes that I want a bit more guidance or clarity on than can be gleaned from the NDA, QR&Os, DAODs or whatever.  Much the same as there is a Leave Manual which does that for the leave policy, the CFTDIs which do that for TD, CFIRP for moves...  Still don't believe me, it's on the JAG DWAN site, look under the link for "Administrative Law", the link for the manual is all the way at the bottom of the page below the wall of lawyerly text.

No it's not a bigger deal: The Proud Boys incident was fully seen by the public and a public relations incident for the CAF that was widespread knowledge in Canada as result of the MSM diffusing it over and over again. There was an immediate negative consequence for the CAF. In the case of the "cabinet leak", while the nature of the Cabinet discussion made its way into the papers, it was not presented in any way so as to pin the blame for it on the CAF at all. If the CDS had not done anything, it would have remained an unknown, at least until the VCDS' home was raided, but even then not public knowledge of the nature of the facts. But in my mind, even then, the public could not care less. Look: does the public care that the other potential leaker identified - a civil servant protected by Union rules - is still working as if nothing had happened and doesn't even appear to be investigated any further. No action anywhere by the CDS and this matter would have died in the public in two days max.

I really don't agree with that.  Proud Boys were the equivalent of frat boys being idiots.  This was the #2 of the CAF being accused of Offences pursuant to the Criminal Code and the Security of Information Act.  If the CDS had done nothing, when it eventually came out, and it would have, we would be out not only the VCDS but also the CDS and the MSM would have had an even bigger field day then they had.

I don't believe this to be correct. First of all "Cabinet confidences" don't travel by mail - we are not talking about "classified documents" here - they are composed of the actual discussions behind closed doors and written advice to the various ministers from their civil servants. This advice is never mailed - it's handed directly to the ministers in big binders where it is assembled.

Second of all, the said "confidence" are not national secrets and are not investigated (in the extremely extremely rare case they ever are- which is infinitesimal compared to the number of leaks - to the point where it is the actual investigation in this case that is abnormal) as Security Breaches, which they are not. They are, in the rare cases it happens investigated as breaches of employment contracts, so that the person responsible can be fired.

To be pedantic, no, not the mail.  But there was, and probably still is, a courier service dedicated to moving cabinet documents (which are still cabinet confidences) within NDHQ, between NDHQ and the PCO, other Departments etc.  They even have/had a special mail room/central registry proximate to the Minister's office which was responsible for coordinating the whole show.  In spite of the special handling and precautions such as requiring positive control, things still went astray.  Earlier in my career I was posted to Ottawa and the MP had a dedicated Security Investigation cell which did these investigations, among a few other things. No doubt things have changed a bit due to email but at the end of the day, stuff still has to move in documentary form and it isn't all hand carried by the Minister because the amount of cabinet documents was pretty surprising.

While you are right that they aren't national secrets in the sense that we traditionally use in the Designation and Classification process, they are treated under their own rules which require the a/m processes to be followed, including security investigations when the process breaks.

 

[FSTO]

I see actions that are in the RCNs interest.  I see actions that are very much in the interests of Davie Shipbuilding.  And I also see actions which are very much counter to the Governments (no matter which party is in power) and CAF's interests writ large.  But most of all I see a relationship between VAdm Norman and the head of the project that was clearly much, much closer than what is now trying to be portrayed as a normal exchange between the Comd RCN and any other member of the business community.

You present valid counterpoints to OGBD except for this one.

Is not the interests of the RCN always in concert with the CAF as a whole? The lack of an AOR is a massive hole in the tactical and strategic capabilities of Canada. Can you imagine an army battle group being deployed without a logistic chain? Or a squadron of fighters deploying without tanker support? Well that is what the RCN has had to deal with since the demise of PRO/PRE and we are still looking at 4 to 5 years at least until steel is cut for PRO II. VAdm Norman saw a clear and present capability gap and was able to convince the CDS and the government of the day that we needed to look at alternate methods to close that gap. Much like the C17 and Chinook purchases, certain members of the bureaucracy had their noses out of joint but the project had government approval. That the new government was thinking of cancelling this project for pure partisan reasons is the crime, not that the Vice Admiral took second hand information (Was he at the Cabinet Meeting? I don't think so) and told important people that the Liberals were thinking of doing the unthinkable.

 

[Rifleman62]

I say again, the Defence of Canada, a governments' prime obligation, is in the best interests of the LPC, not Canada's citizens.

BMD anyone?

 

[ModlrMike]

Perhaps one hears snippets of information, and has the required experience to read the political winds? Perhaps it's more assessing the whole situation and arriving at the inevitable conclusion that lead VAdm Norman to action?

 

[Oldgateboatdriver]

Good morning garb811.

My comments are in yellow below:

It is probable that nobody on this board was present during that conversation.  But is it is reasonable to conclude that the CDS went off the rails and arbitrarily suspended him without following the policy or, is it more reasonable to presume he followed the policy to the letter given who it affected and the consequences of that action.

I agree that it is reasonable to think/believe that he followed, not just the letter, but also the intent, of the rules. No one knows for sure but him, unless it goes before a court. However, I was not disputing that. My point at the time was aimed at your personal statement which positively concluded that because he gave the Admiral a letter everything was properly done according to the QR&O you quoted. I was merely pointing out that unambiguous statement could not be offered short of what I indicated. But again, you are right that it is reasonable to believe he did act correctly.

It has been reported that the CDS consulted JAG prior to making a decision, that he had been briefed in on the allegations by RCMP on 9 Jan and although he informed VAdm Norman he was relieving him of his military duties later that day, did not make anything official and public until 13 Jan giving VAdm Norman ample time to make representation if he had desired...and for all we know, he might have.

Here again, you are speculating. The time lag between informing the Admiral and the official announcement in no way implies ample time for representation.

The CDS is also on the public record as saying, and remember his is coming from a guy who had people die under his command in Afghanistan. None of this screams to me a CDS who went rogue and arbitrarily fired his #2.  Or even of a CDS who was feeling the heat from his political masters to react in a certain way. If anything it indicates to me that if he felt he had any other option what so ever, he would have taken it.

Again here, speculations. The "difficulty" of making the decision does not in any way relate to the appropriateness of the process, nor to any presence/lack of political pressure. For instance and please, I am just spitballing here as an illustration and by no way impugn the CDS's honour - its just for example for the sake of showing how you can spin any fact when you DON'T KNOW: Gen. Vance was a very recent Conservative appointee, the difficulty he talks about may just have been as much political pressure leading to have to chose his own career over his friendship. Again this is just an example and I have absolutely no reason to believe this any more or less than anything else.

I see actions that are in the RCNs interest.  I see actions that are very much in the interests of Davie Shipbuilding.  And I also see actions which are very much counter to the Governments (no matter which party is in power) and CAF's interests writ large.  But most of all I see a relationship between VAdm Norman and the head of the project that was clearly much, much closer than what is now trying to be portrayed as a normal exchange between the Comd RCN and any other member of the business community.

As FSTO alluded to, it is a very narrow vision of "public" interest to assume that just because one specific action benefits a single branch of the Service, it is that branch's interest that is solely at stake. Would you feel the same if, say all the Cormorants were grounded due to a defect and Bell/Textron offered a fix to be quickly applied, and the head of the RCAF pushed real hard for it, even liaising with Bell, to get the birds flying much faster than under standard procurement? Would you consider that in the RCAF interest, or does the provision of SAR to Canadians not be a valid public interest?

On the second point, it is important to remember here, again, that no, the interest of the government of the day is NOT equal to "public" interest. Your conclusion that you see the actions as counter to the government and CAF interest is interesting since a court of law, that unsealed most of the affidavits of the RCMP, has basically concluded the opposite.

Finally, I have been privy in my other life to communications between industry and top military brass, and I can tell you there is not much out of norm in the Admiral's correspondence. The Air Force generals are particularly adept at this  ).

Uhhh...thanks for the lecture.  I think?  You didn't tell me anything I didn't already know though.

I was referring to a specific military manual published by the JAG that has been around since at least 2008, in its current form anyway.  I consult it often when I am conducting administrative processes that I want a bit more guidance or clarity on than can be gleaned from the NDA, QR&Os, DAODs or whatever.  Much the same as there is a Leave Manual which does that for the leave policy, the CFTDIs which do that for TD, CFIRP for moves...  Still don't believe me, it's on the JAG DWAN site, look under the link for "Administrative Law", the link for the manual is all the way at the bottom of the page below the wall of lawyerly text.

Fair enough: That did not exist in my days. But I see it is more like a JAG guide to how to actually go about applying the administrative rules of the CAF to stay within the law, not a law book on how administrative law works. Good on whichever JAG decided to publish such a book, it was sorely needed.

I really don't agree with that.  Proud Boys were the equivalent of frat boys being idiots.  This was the #2 of the CAF being accused of Offences pursuant to the Criminal Code and the Security of Information Act.  If the CDS had done nothing, when it eventually came out, and it would have, we would be out not only the VCDS but also the CDS and the MSM would have had an even bigger field day then they had.

Three things here: First, let's agree to disagree; second, is to wonder why - and at whose intimation - was a criminal investigation ever started? As more than just I have indicated above, Cabinets confidences are leaked as if from a sieve at all times and somehow there never were any criminal investigations. This is a precedent and you can be absolutely certain that the RCMP did NOT start this on its own: politicians laid an information, which by itself probably somewhat directed the RCMP in the direction they wanted it to go (just as was done before with the "Senate" scandal - same overly incensed (IMHO) RCMP team, BTW). But here's the thing: Now that the "precedent" that RCMP investigates Cabinet leaks as criminal act is set, whenever such leak occurs, and is reported in the papers as such, how can the RCMP refuse to investigate on their own unless the politician file a complaint and continue to claim this is not a political process/witch hunt? Thirdly, there has been no MSM field day whatsoever over this matter, other than a few specialized journalists trying to keep the issue alive, while the population in general couldn't care less.

To be pedantic, no, not the mail.  But there was, and probably still is, a courier service dedicated to moving cabinet documents (which are still cabinet confidences) within NDHQ, between NDHQ and the PCO, other Departments etc.  They even have/had a special mail room/central registry proximate to the Minister's office which was responsible for coordinating the whole show.  In spite of the special handling and precautions such as requiring positive control, things still went astray.  Earlier in my career I was posted to Ottawa and the MP had a dedicated Security Investigation cell which did these investigations, among a few other things. No doubt things have changed a bit due to email but at the end of the day, stuff still has to move in documentary form and it isn't all hand carried by the Minister because the amount of cabinet documents was pretty surprising.

OK, so this is not "Cabinet confidences". This is tracking internally to DND/CAF HQ sealed document that may or may not be classified or protected, no one knows because they are sealed. On this, DND is special and I am pretty certain that no other department has a RCMP cell to internally carry out investigations of documents that go missing internally. Nevertheless, the documents internally directed to an office charged with assembling the briefs to the minister for Cabinet meetings does not make the documents "Cabinet confidences". They become such only when the DM has decided that the document is to be included in the brief and is actually put in the said briefing binder. We have to be careful here: any of these documents may posses some for m of "protection" from being considered public from other source (a classified document for instance) wether it ends up or not in the briefing binder, just like some documents may be public otherwise and don't cease to be public just because they are included in the binders (for instance, a University professor published research paper used as supporting documentation will remain publicly available) - at that point, it is only the fact that it was submitted to Cabinet that becomes covered by the protection.

And finally, It is a bit disingenuous to suggest that just because there are more binders than the Minister can personally carry means that they are not "given by hand to the minister". I mean, come on, man!

While you are right that they aren't national secrets in the sense that we traditionally use in the Designation and Classification process, they are treated under their own rules which require the a/m processes to be followed, including security investigations when the process breaks.

This is nice let's keep this going: Should we split to a "Cabinet confidence or not" or "How DND treats Cabinet confidence" thread?

 

[garb811]

I agree that it is reasonable to think/believe that he followed, not just the letter, but also the intent, of the rules. No one knows for sure but him, unless it goes before a court. However, I was not disputing that. My point at the time was aimed at your personal statement which positively concluded that because he gave the Admiral a letter everything was properly done according to the QR&O you quoted. I was merely pointing out that unambiguous statement could not be offered short of what I indicated. But again, you are right that it is reasonable to believe he did act correctly.


Here again, you are speculating. The time lag between informing the Admiral and the official announcement in no way implies ample time for representation.

Again here, speculations. The "difficulty" of making the decision does not in any way relate to the appropriateness of the process, nor to any presence/lack of political pressure. For instance and please, I am just spitballing here as an illustration and by no way impugn the CDS's honour - its just for example for the sake of showing how you can spin any fact when you DON'T KNOW: Gen. Vance was a very recent Conservative appointee, the difficulty he talks about may just have been as much political pressure leading to have to chose his own career over his friendship. Again this is just an example and I have absolutely no reason to believe this any more or less than anything else.

I’m a MP, my gig is “reasonable and probable”.  I leave, “beyond a reasonable doubt” to the lawyers and judges.  [

As FSTO alluded to, it is a very narrow vision of "public" interest to assume that just because one specific action benefits a single branch of the Service, it is that branch's interest that is solely at stake. Would you feel the same if, say all the Cormorants were grounded due to a defect and Bell/Textron offered a fix to be quickly applied, and the head of the RCAF pushed real hard for it, even liaising with Bell, to get the birds flying much faster than under standard procurement? Would you consider that in the RCAF interest, or does the provision of SAR to Canadians not be a valid public interest?

On the second point, it is important to remember here, again, that no, the interest of the government of the day is NOT equal to "public" interest. Your conclusion that you see the actions as counter to the government and CAF interest is interesting since a court of law, that unsealed most of the affidavits of the RCMP, has basically concluded the opposite.

Finally, I have been privy in my other life to communications between industry and top military brass, and I can tell you there is not much out of norm in the Admiral's correspondence. The Air Force generals are particularly adept at this  ).

Not disputing for a second that the lack of AOR capability is a huge deal, but right now, the CAF is lacking, or about to lose, a lot of capabilities that are a huge deal.

Before commenting further, if you haven't read it, the redacted Information to Obtain is available here: Information to Obtain a Search Warrant and Sealing Order.  I will point out that the issues brought up in the ITO have not been tested in court but are documentary evidence, being derived from email sent, or received.

It’s pretty disheartening, and a huge ethical and moral lapse on the part of our senior leadership, if it is de facto knowledge and accepted that “everyone” is behaving like the VCDS did here.  Tipping off a senior manager of a private company about when the management team of a competitor was going to be in Ottawa and visiting CAF/DND, divulging to the management of a private company where the MND is, what he was doing and who he did or didn’t meet, referring to the leadership of a company with which the Government had entered into a multi-billion dollar contract, which the entire fate of the RCNs future combat capability is riding, not just an interim AOR, to the same senior member of the competition…  Somehow I doubt the VCDS was giving the same consideration to ISI or Seaspan senior folks about their competition he was so chummy with, particularly since 3 of them are part of the Riders of the Apocalypse.  Throw in Spencer Fraser’s RCN experience, first thing I’m wondering is, classmate, coursemate or shipmate, what exactly got him the special treatment that the CRCN is willing to risk the relationship with ISI for?  Wouldn't the entire AOPS and CSC programs be the bigger relationship the CRCN should be trying to maintain instead of playing favourites, and bad mouthing the competition, with Davie?  Note that I'm not saying he shouldn't be communicating with the company, but he should be doing it ethically and professionally and with the same consideration he is giving each and every other company.  Is it normal for a Flag Officer to query someone they are doing business with that their daughter will be in contact regarding a fundraiser?

The reason I’m looking at it as being bad news for the CAF and Government writ large is:

1) how much confidence does the Government have that confidential discussions they have with senior military leaders will be kept internal to the consultation process.  How much do they trust that if a senior member of the CAF accompanies them that their business and movements won’t be leaked out when it is advantageous to the “company or party in favour”.  What is the impact of the Govt deciding the risks of a leak, or the probability that the counsel they are receiving is unmotivated by vindictiveness or favouritism?  Do they suddenly start making decisions without consulting senior military leaders?  How does that serve the CAF, the Govt, the Canadian public?  What would the reaction of the VCDS have been if a member of his staff, who had access to his confidential discussions and itinerary, was leaking that info to ISI because they thought ISI could do a better deal for the RCN compared to what the Conservatives had signed Davie up for? 

2) At this point, we have a few huge procurement fiascos on the books.  I will use the Future Fighter for my example.  We all know the F-35 (aka F-52) is the prefered option for the win.  In the meantime though, the Gov’t has gone out of its way to try to have an open competition.  Since the RCAF is on record as saying the F-35 is what they want and need, does that mean when Dassault is pitching the Rafaele, when Saab is pitching the Grippen, if Boeing decides enough time has passed for the Bombardier wound to heal, that they need to be worried about the same shenanigans are going to go on?  That someone at Lockhead Martin...say, Ret’d LGen Charles Bouchard who is the “...for Lockheed Martin Canada”, can expect the same favours from the Commander of the RCAF, because it is quite probable they at least know of each other, have run into each other, if not actually served together, while the rest get shut out of any inside info because they don’t have a retired Canadian General Officer on the payroll and their aircraft aren't what the RCAF wants?

Now, maybe this is the way it works and if it is, I’m saddened, but wouldn’t be surprised and it would be a huge reason to implement a blanket prohibition on post-retirement employment with related defence contractors after a certain rank level as opposed to the pointless 1 year rule currently in place.

Three things here: First, let's agree to disagree; second, is to wonder why - and at whose intimation - was a criminal investigation ever started? As more than just I have indicated above, Cabinets confidences are leaked as if from a sieve at all times and somehow there never were any criminal investigations. This is a precedent and you can be absolutely certain that the RCMP did NOT start this on its own: politicians laid an information, which by itself probably somewhat directed the RCMP in the direction they wanted it to go (just as was done before with the "Senate" scandal - same overly incensed (IMHO) RCMP team, BTW). But here's the thing: Now that the "precedent" that RCMP investigates Cabinet leaks as criminal act is set, whenever such leak occurs, and is reported in the papers as such, how can the RCMP refuse to investigate on their own unless the politician file a complaint and continue to claim this is not a political process/witch hunt? Thirdly, there has been no MSM field day whatsoever over this matter, other than a few specialized journalists trying to keep the issue alive, while the population in general couldn't care less.

Who launched the complaint?  In the ITO it states this part of the overall investigation was a follow on from an internal investigation in the Privy Council Office.  I do note; however, that everyone is pointing fingers at the Liberals when Murray Brewster reported the overall investigation was initiated by the Conservatives, "Multiple sources tell CBC News the hunt for informants began under the former Conservative government, but gained a renewed intensity in November 2015 under the newly elected Liberals following at least three sensitive breaches that were splashed across the media." (full article).  So I suppose the ultimate complainant here is PM Harper.  When it kicked off, I'm pretty sure they had no idea that one of the trails was going to lead to the VCDS though. 

The fact “Cabinet Confidences” leak from Cabinet is irrelevant.  It is their information, if the Cabinet decides to leak something deliberately as a trial balloon, that’s their prerogative, much the same as I can take my PROTECTED B PER and pin it in the bulletin board in the lobby with impunity but nobody else can.  It is also irrelevant if other leaks aren’t investigated, and there isn’t a precedent set that all Cabinet Confidence leaks must now be investigated.  Just because a shopkeeper doesn’t report someone for shoplifting doesn’t mean that they can’t report anyone else and by the same token, just because they report someone doesn’t mean they are now obligated to report every incident of shoplifting in their store.

And from my perspective, given the normal coverage anything defence related gets in Canada, yeah, field day.  Every major, and quite a few not so major, news organizations covered this when it broke, went to court to get the ITO and Search Warrant unsealed, continue to follow-up...

OK, so this is not "Cabinet confidences". This is tracking internally to DND/CAF HQ sealed document that may or may not be classified or protected, no one knows because they are sealed. On this, DND is special and I am pretty certain that no other department has a RCMP cell to internally carry out investigations of documents that go missing internally. Nevertheless, the documents internally directed to an office charged with assembling the briefs to the minister for Cabinet meetings does not make the documents "Cabinet confidences". They become such only when the DM has decided that the document is to be included in the brief and is actually put in the said briefing binder. We have to be careful here: any of these documents may posses some for m of "protection" from being considered public from other source (a classified document for instance) wether it ends up or not in the briefing binder, just like some documents may be public otherwise and don't cease to be public just because they are included in the binders (for instance, a University professor published research paper used as supporting documentation will remain publicly available) - at that point, it is only the fact that it was submitted to Cabinet that becomes covered by the protection.

You are taking a much, much too narrow view of what is considered a Cabinet Confidence.  Cabinet Confidences are defined as:

Confidences of the Queen's Privy Council for Canada (Cabinet confidences)

3. Types of documents
Cabinet confidences are defined in the Act as information contained in six types of documents described in paragraphs 70(1)(a) through 70(1)(f) of the Act. The six types of documents do not constitute an exhaustive list but rather provide a series of examples of records that are considered Cabinet confidences. The six types of records are described below.

(a) Memoranda
(b) Discussion papers
(c) Agenda and records of Cabinet deliberations or decisions
(d) Records of communications between ministers
(e) Records to brief ministers
(f) Draft legislation

Click the link for the full passage.

It's not just internal to DND, it is across all of Government, all Departments.  These don’t just float around non-descript, they are clearly marked on the envelope, file folder etc etc in the same fashion we use security markings on classified or designated material.  You get one of these, intentionally or not, there is no mistaking what it is.

I don’t have a clue how other departments do things but they are required to investigate it.  Just like within CAF/DND MP do not do all security investigations, RCMP are not required to do all security investigations for the rest of Govt.  I would expect the applicable Departmental Security Officer has staff assigned to this, I know a few ex-MP and MPO who are doing this kind of thing.  Since we are a convenient resource for DND and do security investigations anyway, this is our bag with DND/CAF.

Reference you saying, “ Nevertheless, the documents internally directed to an office charged with assembling the briefs to the minister for Cabinet meetings does not make the documents "Cabinet confidences". They become such only when the DM has decided that the document is to be included in the brief and is actually put in the said briefing binder.”  That’s like making the argument that information only becomes TOP SECRET when you actually type that classification onto the document.  Until then, it isn’t classified at all and fine to send via email through a private server that just happens to be located in your house, that also holds all of your personal email...

This is nice let's keep this going: Should we split to a "Cabinet confidence or not" or "How DND tre[ats Cabinet confidence" thread?

I think it's ok to leave in here for right now...j

Edit:  Typo

 

[jollyjacktar]

I'd suggest the proof of what gave him the push to seek Davies out is at present doing sea trials and gives us back some sea legs.  (something neither ISI or Season were going to deliver until God knows when) That, and the new broom was about to fuck us, as the Chretien new broom did to helos, 25 years ago.

For the good of the service, not for personal gain.

Our procurement system is so convoluted, ass backwards, micro mismanaged by PSPC, under staffed and overwhelmed it's no wonder to me that someone would be tempted to do an end run in order to accomplish something. (Allegedly)