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VAdm Norman - Supply Ship contract: Legal fight

Rifleman62

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Article two. Readers have been requesting more coverage by Christie.

http://nationalpost.pressreader.com/national-post-latest-edition/20181219

A sorry saga worthy of Shakespeare - NP - 19 Dec 18 - Christie Blatchford
    Mark Norman is in a war with few allies

The lines from Shakespeare are an axiom of any military: “We few, we happy few, we band of brothers; for he that sheds his blood today with me shall be my brother.” The words speak to the profound bonds forged by those in uniform, especially at times of war, and to their love of and loyalty to one another.

Yet the only two people riding to the rescue of Vice-Admiral Mark Norman, aside from his formidable team of lawyers led by Marie Henein, are two mid-level public servants who wanted to do the right thing and feared that Henein et al weren’t getting the information they needed to properly defend him. Collectively, they have also added flesh to the bones of the defence allegation that the Liberal government may be trying to bury relevant documents — and Norman with them.

He is charged with a single count of criminal breach of trust for allegedly leaking confidential information about the iAOR — the interim Auxiliary Oil Replenishment vessel — which Canada, under the former Stephen Harper government, decided it badly needed and which the new Liberal government, elected in the fall of 2015, was trying to stall. Norman allegedly leaked secret information to an acquaintance of the company, Chantier Davie, which was to supply the ship, and to a CBC reporter. The CBC reporter wrote about the endangered contract — and the $89-million penalty taxpayers would have paid had it not been signed — and the Liberals backed off.

Melissa Burke, a former analyst at the Privy Council Office (PCO), the bureaucracy that serves the prime minister, wrote Christine Mainville, one of the defence team, late last month. “I think these notes would be relevant to your defence,” Burke wrote. “I brought them to the attention of the government, and I understand that they will be provided to you. “But I wanted to make sure.” The notes disclose a meeting Burke had forgotten about, she said, a so-called “four corners” meeting among the PCO, the Prime Minister’s Office (PMO), the Department of National Defence (DND) and Public Works. Such meetings are held among senior officials from all involved departments and political staff and are usually held before a matter goes to cabinet.

At this one, on March 24, 2015, Burke said, she made particular notes of “an exchange between the PMO and Vice-Admiral Norman as to what their (the Harper government’s) preferences are.” Burke immediately knew it was important and “literally physically flagged it” in her notes. The notes are among material whose relevance Justice Department lawyers are still, even now, disputing. They have never been disclosed to defence lawyers but could be if Ontario Court Judge Heather PerkinsMcVey decides they are relevant.

After Burke’s testimony, a Canadian Forces member now known only as Witness A told the judge Tuesday he came forward “because I think it’s the right thing to do.” Perkins-McVey imposed a publication ban on the man’s name and information that would tend to identify him. He said in an affidavit he feared “potential intimidation and reprisal actions” were he publicly known.

He told the judge that shortly after starting on a new job that gave him reason to be involved in Access to Information and Privacy (ATIP) applications he was told to answer one particular request “nil response,” meaning no documents could be found. This was in relation to a 2017 ATIP request seeking records and notes relating to the Norman case. At one point, the man said, a smiling brigadier general told him of this ATIP request, “Aaah, (Witness A). Don’t worry; this isn’t our first rodeo. “We made sure we didn’t use his (Norman’s) name.”

Henein is now subpoenaing that brigadier-general, as well as Chief of the Defence Staff Jonathan Vance and former deputy DND minister John Forster after the judge scheduled three more days for the hearing in January. Witness A was accompanied by his own lawyer, Ian Carter, as was Ms. Burke accompanied by hers, AnneMarie McElroy.

It was in response to a Henein subpoena that Burke went through the notes she had made in her 2½ years at the PCO, where she was the note taker at Harper cabinet meetings. She had disclosed the fact that she had the notes in her interview with the RCMP in January of 2016, when the force was still investigating Norman. Yet astonishingly, in the almost intervening two years — until the end of October this year — neither the RCMP, Crown prosecutors nor lawyers from the Justice Department ever asked her to produce the notes. It appears that only after she was subpoenaed by the defence team that the RCMP belatedly asked about getting them.

This delay, coupled with the general level of stalling with which repeated defence requests for documents have been met (it often took three defence letters to even get a response from the prosecution team), led a furious Henein to remind the judge that in the recent prosecution of former Dalton McGuinty chief of staff David Livingston, it was Access to Information requests from parliamentarians, reporters and citizens that repeatedly purportedly turned up no documents. It was only when the code name for the Livingston project — to have government computers cleansed, apparently of embarrassing gas plant information — was discovered that the requests started to produce documents.

As another example of what Henein called obfuscation by the government, she produced an email dated Tuesday from former PM Harper to Michael Wernick, clerk of the PCO. As the Norman case got more headlines and the issue of whether the Justin Trudeau government would waive cabinet confidence and thus free civil servants to speak honestly, it became clear that most of the documents the defence is seeking date to the Harper era.
In apparent reply to all this, Harper even tweeted that he had never claimed cabinet confidence. Yet asked for that waiver — or any evidence the current government had even asked Harper for it — repeatedly by the defence, the government refused to answer.

Only on Nov. 1, did the government finally say it wouldn’t claim that confidence, but rather “the public interest immunity.” But in the case of Burke, the PCO had in fact released her from cabinet confidence almost a year ago, yet no one in government — including a Justice lawyer who met her recently — ever deigned to tell her.

“To suggest this isn’t obfuscation and gamesmanship, when we directly asked again and again (about both the Harper waiver and the government’s position on cabinet confidence), they (the government) have refused to answer that question since July,” Henein snapped. “After 3½ years, how is it that his counsel has to try to unravel this?” Henein thundered. “And this is the tip of the iceberg.”

In other words, Mark Norman, is indeed in a war. He just has no happy few with him.
 

FSTO

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When I initially read the part about leaving VAdm Norman's name out of any correspondence to limit ATI compliance I thought that was being done to protect him. But now it seems that it was being done to ensure that damaging information towards the government and the department would be difficult to acquire.

Pretty dirty business going on up at the executive suite of 101. Or maybe I'm just reading too many thriller paperbacks?
 

Halifax Tar

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FSTO said:
When I initially read the part about leaving VAdm Norman's name out of any correspondence to limit ATI compliance I thought that was being done to protect him. But now it seems that it was being done to ensure that damaging information towards the government and the department would be difficult to acquire.

Pretty dirty business going on up at the executive suite of 101. Or maybe I'm just reading too many thriller paperbacks?

I truly hope fellow CAF pers have not tried to submarine the good Admiral.  We shall find out I suppose.
 

Colin Parkinson

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FSTO said:
When I initially read the part about leaving VAdm Norman's name out of any correspondence to limit ATI compliance I thought that was being done to protect him. But now it seems that it was being done to ensure that damaging information towards the government and the department would be difficult to acquire.

Pretty dirty business going on up at the executive suite of 101. Or maybe I'm just reading too many thriller paperbacks?

Having dealt with Ottawa, I am sadly not surprised. They are good people there that struggle to do right, but it's often a case of tilting at windmills.
 

Dissident

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This obfuscation hurts me deep down in my Canadian soul. Ms Burke and Witness A have my thanks for coming forward.
 

Navy_Pete

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FSTO said:
When I initially read the part about leaving VAdm Norman's name out of any correspondence to limit ATI compliance I thought that was being done to protect him. But now it seems that it was being done to ensure that damaging information towards the government and the department would be difficult to acquire.

Pretty dirty business going on up at the executive suite of 101. Or maybe I'm just reading too many thriller paperbacks?

That's definitely dirty pool.  Have done my fair share of ATI processing, and while you sometimes screen things out (because it was outside of the requested range of dates, or something similar) sure they made it broad enough that they should have got something.  What they are doing is unethical as hell, and not IAW the ATI legislation letter of the law or intent.

Also, if you are going to be clever, they should have sent back some stuff, but screened out others. Still unethical, but at least it's not stupid. This was both wrong and hugely improbable, so almost guaranteed to get caught.  If this is true, hope these idiots get crucified and shown the door.

Makes me wish for a benevolent dictator at times to burn the system to the ground and start over. If people put the effort into getting things accomplished they did into building their little empires and playing their daft political games we'd have the best run military in the planet.
 

Bruce Monkhouse

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If I'm the judge I would ask to hear about those other "rodeo's".
 

Rifleman62

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http://nationalpost.pressreader.com/national-post-latest-edition/20181221/textview

Curious conduct of the Crown - NP - 21 Dec 18 - Christie Blatchford
    Norman case a show of state power

As Ontario Premier Doug Ford might say, it’s shaping up as a real humdinger. I refer to the prosecution of Vice-Admiral Mark Norman, the former vice-chief of the defence staff, where a third-party records application brought by defence lawyers is now on hiatus until January. The hearing ran for two days in Ottawa this week and was so replete with news — first, an email from former prime minister Stephen Harper, waiving cabinet confidence on documents dating from his era and then two surprise witnesses, public servants called by the defence, the sum of whose evidence was that the current government may be very well trying to bury records in the case — that one aspect got lost.

It is this, the curious conduct of the state in all this. The state is a three-headed beast in the Norman prosecution, who is charged with a single count of breach of trust for allegedly leaking secret information. First, it is the complainant; it was the Privy Council Office of Prime Minister Justin Trudeau that first called in the RCMP. Second, it is the prosecutor, with three federal Crowns from across the country and three Justice Department lawyers handling the case. Third, the state is the controller of all information.

The defence seeks records (emails, texts, briefing notes) of various meetings among government officials who discussed either the ship (the interim Auxiliary Oil Replenishment, or iAOR, ship Ottawa wanted under Harper and didn’t under Trudeau), the leaks about it or the RCMP investigation into Norman’s conduct.

Only the government, either through the involved departments (such as Treasury Board, Department of National Defence) or the Prime Minister’s Office or the PCO (the powerful bureaucracy that serves the PM), has access to those records and controls them. The departments, for instance, exercise control through requests for information made under the Access to Information and Privacy legislation. The PCO can exert claims of “cabinet confidence,” and this claim is absolute and can’t even be reviewed by a court. Thus, from the get-go, the defence team (Marie Henein, Christine Mainville and Maya Borooah) was up against it.

In fact, even the state’s physical presence in court (six lawyers seated at the tables, with assorted other justice lawyers hanging about in the public section) could be intimidating. I haven’t seen such a muscular presentation of the power of the state since the long-ago trial of my colleague, Conrad Black, in Chicago, where the government’s main witness, Black’s former trusted lieutenant David Radler, once described the array of people who faced him at his first meeting — a representative of every government department with a three-letter acronym (FBI, CIA, IRS, etc.).

There at least, as with much in America, the presentation and message were honest: We are the government, Mr. Radler, and if you don’t help us, we will crush you. It is much less transparent, but with the same awesome power, in the Norman case. Here, the state pretends it is horrified and offended at allegations it is being less than co-operative and dragging its big feet, while still, inevitably, being uncooperative and dragging its big feet. Take, for instance, the issue of the Harper cabinet confidence.

Henein first wrote prosecutors, asking what the status of the waiver of cabinet confidence was — emphasizing that any waiver must cover the entire time period at issue, in other words, the Harper era, on July 9. It is self-evident that the defence needed to know this, if they were to properly defend their guy. With no response, she wrote again on July 17, on Aug. 28, and Sept. 12, this time asking if Norman himself was prohibited from disclosing such confidences to his own lawyers. Finally, on Sept. 18, she wrote Trudeau directly, copying the clerk of the PCO, begging for some direction. (There never was a response from the PM.)

Henein finally got written responses from prosecutors in September, and it’s clear there were some discussions along the way, but when she and Mainville wrote again in early October, they pointed out that the PCO confirms that “PM Harper would have to approve of their disclosure” and asked, in effect, what prosecutors were doing about that. They also remarked, not for the first time, that prosecutors “seem to be wholly unconcerned by this fairness issue.” Finally, this week, Harper sent a note to the clerk of the PCO (copied to Henein) repeating formally what he’d said already in a tweet — “I do not assert cabinet confidence for documents relevant to this proceeding,” and left it for the judge to determine relevance and disclose what she wished.

Lest you imagine only the defence cares about this, Ontario Court Judge Heather Perkins-McVey appears to care too. At one point on Tuesday, she cut off one of the prosecutors who was attempting to stall to consider the evidence of one of the surprise witnesses. “His evidence is very clear,” the judge said. “Very troubling.” The man had testified at what seemed to him to have been DND efforts to bury key documents. Of another key witness, who testified that though she flagged for government lawyers a particular document, no one had made any effort to get her notes. “It’s troubling,” the judge said. “Very troubling, given how the witness had specifically flagged it.”

THE STATE PRETENDS IT IS HORRIFIED AND OFFENDED

For the record, the Crown — in this case prosecutors and Justice lawyers — has a higher duty, as cases at bothThe Ontario Court of Appeal and Supreme Court have made clear — than ordinary lawyers. That obligation is, in the language of the court, to the administration of justice. You and I know that as the truth; the Crown has an obligation to get at the full story, the bottom line, and to disclose it. As Ontario appeal court Justice David Doherty remarked in a case called R v Ahluwalia, a drug case where prosecutors had failed to disclose the lengthy criminal record of a key witness, “Remarkably, the Crown professed to have no idea why full disclosure had not been made, offered no explanation (for the failure)…”

Remarkably, it all sounds unsettlingly familiar.
 

Rifleman62

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He means that he had no idea that something like this was going on. Same as the leadership in the Wpg incident. The CDS absolutely knew the Liberal gov't was going full bore after Adm Norman. The CDS relieved him as VCDS. Who ordered the CDS to that? That's a clear indication that the Liberals had a hate on.

https://www.cbc.ca/news/politics/vance-norman-access-information-breach-trust-1.4955102

'Alarmed' and 'disgusted': Vance erupts over report that DND evaded information requests on Mark Norman - 21 Dec 18
    'I cannot say enough about how bad this is, if it’s true,' says CDS

The country's top military commander is denying any knowledge of defence officials intentionally trying to subvert the federal access to information system by avoiding the use of Vice-Admiral Mark Norman's name in internal correspondence. In a year-end interview with CBC News, Chief of the Defence Staff Gen. Jonathan Vance described recent testimony in the criminal case against his former deputy as "extremely serious" and alarming. A pretrial hearing this week in the breach of trust case against Norman, the former vice-chief of the defence staff, heard testimony from a military member who handles access to information requests.

The individual, whose name is protected by a publication ban, told the court that in July, 2017 he approached his commander asking for help with an access-to-information request for internal documents about Norman.His commander, he said, smiled and said there were no records because "this isn't our first rodeo" and officials were being careful to avoid using the vice-admiral's name in memos, email and briefings. That would mean any search for records about Norman would come up empty. If that's true, Vance said, it could be a breach of access-to-information law and a "reputational hit" for National Defence, which faced outrage in the 1990s when it released altered documents under the act in reference to the Somalia scandal.

'We don't use codenames'


"I'm alarmed and somewhat disgusted by this, if it's true," Vance said in the interview. "I cannot say enough about how bad this is, if it's true." Defence lawyer Marie Henein told the court that if Norman was referred to by a "codename" within National Defence, it would make it very easy to bury the records. Vance denied that suggestion. "We don't hide names. We don't use codenames," he said. "If it was done, if it has been done, it's wrong, dead wrong and we'll stop it." Often, senior members of the military do refer to each other using the acronyms of their job titles — 'CDS' for chief of the defence staff, for example.

Vance vowed an investigation and, if the allegations are corroborated, to hold those responsible to account. He said it is paramount to cooperate with both the defence and prosecution in the case. There will also be measures to remind everybody at National Defence "about the importance of the act and how it works, and why it works," Vance said. Norman is charged with a single count of breach of trust and is accused of leaking cabinet secrets involving a $668 million deal to lease a supply ship for the navy. His lawyers spent five days in court recently arguing for access to federal government documents, including secret cabinet memos, related to the project at the Davie shipyard in Levis, Que. The defence has alleged the government is dragging its feet and even hiding documents, and cherry-picking the information it does release.

Norman's lawyers also claim the Crown has been hindering its access to witnesses. An expert in military law and access-to-information law said it's entirely possible Vance did not know about the alleged suppression of Norman's name, but suspects it could turn out to be a case of "willful blindness." Retired colonel Michel Drapeau used the information legislation extensively during the Somalia affair — a cover-up involving the torture and murder of a teenager during an ill-fated peacekeeping mission. He said National Defence is artful and skilled at keeping sensitive, potentially embarrassing issues from being committed to paper — despite having instituted reforms after getting caught releasing altered documents during the 1990s scandal.

'Give me a break'

Officials use sticky notes, or brief each other verbally, said Drapeau. "It comes across that the CDS is scandalized by it. Well, give me a break," he said. "It doesn't correspond with my experience and doesn't correspond with my knowledge of how DND operates."

Drapeau also took issue with the notion that the defence department needs to remind its people of their duty when it comes to the handling of information requests. It is, he said, a matter of leadership and culture — not process. "It's not an issue that the Act doesn't work, or the people running the Act don't know their jobs ... This case is not the first. It's not the exception. It's the norm." Norman's lawyers intend to subpoena Vance, former Defence deputy minister John Forester and the brigadier general who was in charge of access-to-information during the relevant period. Another pre-trial hearing in Norman's case will take place at the end of January.

 

Humphrey Bogart

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So will the CDS and others also end up with egg on their face over this?

 

Bruce Monkhouse

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The armchair quarterback in me says "How could they not"?    Unless someone falls on his/her sword big time.....
 

Retired AF Guy

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Manged to find a redacted copy of the ITO (Information to obtain and sealing order) for VAdm Norman. Unfortunately, it is to large to attach, but can be read online here:

https://www.scribd.com/document/346452528/ITO-and-Sealing-Order-With-Codes
 

Colin Parkinson

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Hmmm interesting I wonder if the 2 events are related.....

https://www.citynews1130.com/2019/01/10/scott-brison-resigning-cabinet/
 

Kirkhill

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One more week and it will be exactly 2 years since VAdm Norman left his desk.

2 years of investigation, a ship built and operational for a full year.
 
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