Mark Norman's defence points to SNC-Lavalin testimony in bid to unlock secret documents

The country's soon-to-be-former top bureaucrat may have given lawyers for Vice-Admiral Mark Norman an opening to scrub away some of the black ink covering up federal documents submitted to the court as part of his breach of trust case.

The defence team for the ex-commander of the navy today pointed to testimony Michael Wernick, who is retiring as clerk of the Privy Council, gave before the House of Commons justice committee regarding the SNC Lavalin affair back in February.

In his testimony, Wernick cited the Norman case as an illustration of how the Liberal government deals with the issue of cabinet secrecy.

It was Wernick who decided that the trial judge should be the one who makes the call about which secret cabinet documents are relevant enough to disclose to the defence.

Norman's lawyers have argued the comments amount to a waiver of solicitor-client privilege over documents submitted to the trial that the federal government has redacted, either in whole or in part.

"He takes ownership," said Christine Mainville, co-counsel defending the former vice chief of the defence staff. "He says, 'It was me, it was all me.'"

She said not all of the documents, which have been censored, contain legal advice — which is protected by solicitor-client privilege — and the clerk's comments suggest the decision to leave the question of disclosure to the judge in the Norman case was made without legal input.

'Speculation and conjecture'

The lawyer representing the federal government, Robert MacKinnon, argued that Wernick's statement gave nothing away — that there is nothing in it to indicate the clerk meant to waive confidentiality.

"Mere speculation and conjecture about the contents [of the statement] are not sufficient," said MacKinnon. "There always has to be some manifestation of the voluntary intention to waive privilege. There has to be that element of intention on the part of the person."

Norman is accused of leaking cabinet secrets involving a $668 million shipbuilding deal — a plan to lease the navy a supply ship.

His lawyers have fought with the federal government for months for disclosure of documents that could aid in his defence and prove their theory that the prosecution was politically motivated.

MacKinnon noted that 7,645 documents have been turned over to the judge for review, but some of them had been censored for solicitor-client privilege — something the defence challenged in a two-day pretrial hearing this week.

The question of what constitutes confidentiality between government lawyers and federal officials came in for close examination during the hearing.

Patrick Hill, a senior Privy Council Office official who swore an affidavit that the government's redactions were legitimate, cast a very wide net in his assessment.

He testified under cross-examination that while straight-up legal advice is covered by confidentiality provisions, so are the expressed views of government lawyers on matters of policy and strategy — even public affairs communications plans.

The limits of confidentiality

The effect of what he suggests would be that everything a federal lawyer says or writes while dealing with a government department or staffer is considered confidential.

It's not an novel argument. The same argument gets made when the media fights for documents under the access to information legislation and the federal government invokes solicitor-client privilege.

Norman's lawyers argue, however, that the law takes a different, more narrow view of the cone of silence imposed on lawyers.

MacKinnon acknowledged that not everything a lawyer says is privileged, but added that "it's clear it's not just telling the client what the law is."

The case does not go to trial until August and there will be another pretrial hearing on May 8.