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Vice-Admiral Mark Norman's legal team has demanded the federal government release dozens of documents that officials have deemed cabinet secrets, but which Norman's lawyers insist are needed to properly defend their client in court.
The request is detailed in a court filing submitted by Norman's lawyers that accuses the government of having "cherry-picked" the disclosure of information in the breach-of-trust case against the senior military member.
The demand for more information has since been picked up by the opposition Conservatives, who called on the government during a heated question period Monday to provide the secret documents.
The Tories also questioned Treasury Board President Scott Brison's role in the affair, suggesting that he acted inappropriately when he intervened in the shipbuilding project at the heart of the court case against Norman.
Brison defended his push in November 2015 to pause the plan to pay Quebec-based Davie Shipbuilding $668 million to convert a civilian ship into a new resupply vessel for the navy, saying he wanted to ensure value for taxpayers.
Yet he refused to weigh in on Norman's request for secret documents, which can be released if Prime Minister Justin Trudeau waives their designation as cabinet confidences.
Norman was charged in March with one count of breach of trust for allegedly leaking government secrets to Davie after the Liberals suspended the project.
The former navy commander and vice-chief of defence staff, who remains suspended with pay, has denied any wrongdoing and his seven-week trial is currently set to begin in August 2019 and run through much of next year's federal election.
The request could put the government in a real bind, said one legal expert, since if the court agrees with Norman's lawyers, officials would be forced to either produce the sensitive documents — or refuse and risk having the case against the suspended military officer thrown out.
The disclosure of evidence is a key tenet of Canada's legal system, and courts can normally compel the release of such information, but the Canada Evidence Act lets the government refuse such requests for cabinet confidences, said University of Ottawa law professor Craig Forcese.
If that happens, he said, "there's a good chance the court would turn around and say: 'The defence doesn't have access to documents that I have decided are likely relevant. This is no longer a fair trial. Case dismissed.'
Norman's case is the first to focus on access to federal cabinet secrets in a criminal case, added Forcese.
Documents deemed cabinet confidences are considered political secrets. Usually prepared for ministers to help with government deliberations and decision-making, they are legally protected from unauthorized release.
The documents requested by Norman's lawyers are currently being held by the Privy Council Office, the federal agency that supports the Prime Minister's Office and the cabinet.
The records have not been provided to police or prosecutors because PCO has declared them to be cabinet confidences, and neither the police nor prosecutors have been allowed to review them — which Norman's legal team flagged as a serious concern.
"The PCO initiated the RCMP investigation, yet it controls the entire flow of information and has to date refused to provide any transparency," the court filing reads, adding that the full context is required to be able to understand — and fight — the case.
"The defence is entitled to rebut the central core of the prosecution theory by relying on the full narrative of government activity as it pertained to the (supply-ship project), not merely the selective evidence cherry-picked by the prosecution and authorities."
The defence also criticized the process for classifying information as a cabinet secret as arbitrary and subjective — a complaint echoed by many experts.
Among the documents that Norman's lawyers want are a variety of briefing notes, reports, emails and other records for ministers and senior officials as well as the results of investigations into six other alleged leaks relating to the supply-ship project.
They also want to see all correspondence between Brison, who is from Nova Scotia and played a key role in pausing the project, and Halifax-based Irving Shipbuilding, which wanted the work for itself.
Norman's lawyers allege Brison intervened in the supply-ship project on behalf of Irving, but the minister told the House of Commons in response to Conservative questions on Monday that his job was to perform some level of due diligence for a new government.
The RCMP have alleged that Norman was angry at the project's suspension, and leaked information to Davie in an attempt to pressure the Liberals to continue with the contract.
The Liberals ultimately decided to continue with the project and the vessel is now being used on naval operations. This summer, the government contracted Davie to convert and sell three used icebreakers to the Canadian Coast Guard.
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