OTTAWA — Vice-Admiral Mark Norman’s lawyers are using the words of the country’s top bureaucrat at the height of the SNC-Lavalin affair as they press for access to secret government documents about their client’s case.
Norman’s legal team argued during a pre-trial hearing Wednesday that testimony Michael Wernick, the outgoing clerk of the Privy Council, gave to a parliamentary committee earlier this year opens the door for them to see the documents, which the government has labelled as solicitor-client privilege.
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Wernick told the Commons’ justice committee that he made the decision last October not to prevent the release of thousands of other secret cabinet documents requested by Norman’s lawyers.
“I made the decision, of my own volition, with my own authority, that the easiest way to deal with the Norman matter was to let the judge decide what was relevant,” Wernick said on Feb. 21.
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Norman’s lawyers say Wernick’s comment amount to a waiver of solicitor-client privilege, meaning emails, memos and other documents related to Wernick’s decision should be released despite the government’s argument that they contain legal advice.
Norman’s team believes those documents will prove Norman’s case has been tainted by political interference and boost their efforts to get the breach-of-trust charge tossed out.
But in a written submission to the court, Justice Department lawyer Robert MacKinnon insisted that Wernick’s comment did not amount to a waiver of solicitor-client privilege.
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“It would be absurd if a decision taken based on legal advice, and stated in open court, resulted in the legal advice underpinning that decision being subject to waiver,” MacKinnon wrote.
“This would mean that when an accused decides to plead guilty or not guilty, the legal advice he or she received on the question would be subject to waiver.”
In court on Wednesday, Norman’s lawyer Christine Mainville said Wernick’s testimony indicated there was no legal advice that led to his decision on how to deal with the cabinet documents.
“He takes ownership,” Mainville said. “He says: ‘It was me, it was all me.'”
She also flagged his comment, specifically his reference to the “easiest way,” as suggesting strategic considerations were at play rather than legal matters, and that he voluntarily referenced the Norman case during his testimony.
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Justice Heather Perkins-McVey nonetheless raised the spectre of Wernick overstating his own role, noting it is common in government for many people to be consulted or involved in discussions before a decision is made.
She also asked whether the comment would be covered by parliamentary privilege, which would prevent Norman’s lawyers from using it in his court proceedings. MacKinnon argued parliamentary privilege would apply.
Norman served as the military’s second-in-command before being suspended and charged with breach of trust for allegedly leaking government secrets to influence cabinet’s decision-making on a $700-million shipbuilding contract.
He has denied any wrongdoing.