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John Ivison: If this is the case against Mark Norman, it’s awfully thin gruel

It is not yet clear whether charges will be levelled against one of the country’s top military officers, who RCMP investigators believe broke the law by passing sensitive information to the chief executive of a firm chosen to build a supply ship for the navy.

But, based on the information contained in documents the RCMP filed to obtain a search warrant for Vice-Admiral Mark Norman’s electronic devices, the decision to prosecute would be folly and likely end up in another embarrassment for the Horsemen.

I’m not a lawyer but I have seen this movie before. The RCMP sensibly decided not to lay charges against Nigel Wright, Stephen Harper’s former chief of staff, at the time of the Mike Duffy affair because they decided that criminal intent would be difficult to prove beyond reasonable doubt. Specifically, on a breach of trust charge prompted by Wright’s decision to pay $90,000 of Duffy’s expenses, investigators did not believe that Wright received a personal or “tangible” benefit or that they would be able to prove “mens rea” — intention of wrongdoing.

“The evidence in fact shows that Mr. Wright thought it in the public interest to repay the $90K,” wrote former RCMP superintendent Biage Carrese in a 2014 report, obtained by the Globe and Mail through an access to information request.

The RCMP did pursue Duffy and received a bloody nose from the judge, who cleared the senator of all 31 criminal charges, deeming his transactions “unorthodox” but not criminal.

The Duffy affair is instructive because it suggests that a successful prosecution in the murky world of politics, in the absence of demonstrable bribery or corruption, is an exceptionally hard task.

Peter J. Thompson / National Post
Peter J. Thompson / National PostLawyer Marie Henein.

A review of the documentation now publicly available in the Norman case suggests that not only is there so far no indication he prospered in any personal or tangible way, he had no criminal intent and believed he was acting in the public interest.

His lawyer, Marie Henein, has released a statement that denies the vice-admiral did anything wrong and that he has been caught in a “bureaucratic cross-fire.”

My suggestion is that the cross-fire is entirely political, as Liberal ministers from the Maritimes caved to pressure from New Brunswick’s powerful Irving family, owners of the Halifax shipyard, to delay signing off on a contract that had been investigated thoroughly under the Conservatives.

To recap — the government operated two Auxiliary Oiler Replenishment supply ships between 1960 and 2016, when both were decommissioned earlier than expected. This left the navy without a vessel of its own to resupply warships at sea.

The replacement ships were not scheduled to be in service until 2020, so the Conservatives signed a letter of intent with the Chantier Davie shipyard in Levis, Que., to negotiate an interim AOR ship — a retrofit that would cost around $670 million. As part of the agreement, Davie would be paid $89 million in reimbursed costs, if the contract were not awarded.

On Oct. 7, 2015, the commercial ship, Asterix, arrived at the Levis yard.

On Nov. 20, CBC reporter James Cudmore, now an adviser in the office of defence minister Harjit Sajjan, published an article stating the government had delayed deciding on the deal for at least two months to do more due diligence — a potentially massive blow for the Davie yard but also for Norman’s hopes of the navy getting a supply ship to fill its capability gap.

In the end, the government decided to proceed with the project, faced with the prospect of paying $89 million if it cancelled.

But the inquiry into how word had leaked out was already in train.

The committee meeting at which that decision to delay was made was covered by the rule on “cabinet confidence,” meaning it should not have been made public.

The investigation by RCMP corporal Matthieu Boulanger is detailed in the search warrant application that was made public this week when the documents were unsealed thanks to an application made by Postmedia and other media organizations.

Boulanger says in the documents he does not know who talked to Cudmore but he established a clear link between Norman and Spencer Fraser, CEO of Project Resolve, the firm selected to refit the supply ship at the Davie yard.

Scott Brison, the Treasury Board secretary, told Boulanger in an interview that “it made our jobs more difficult,” adding he could not remember a similar breach of Cabinet confidence. “The rendering of this (classified information) into the public did an awful lot to limit our ability to really do what (the committee) intended to do, and that is more due diligence on this.”

For a parliamentarian with nearly 20 years experience, that seems remarkable. Perhaps he should eat more oily fish. More likely, the Liberals were nervous about favouring a Halifax shipyard over one in Quebec.

It does seem clear from emails received by Fraser that Norman was sharing information with him regarding the government’s concerns around the AOR contract.

Adrian Wyld / Canadian Press
Adrian Wyld / Canadian PressRoyal Canadian Navy Vice-Admiral Mark Norman (left) speaks with Vice-Admiral Ron Lloyd during a change of command ceremony, Thursday, June 23, 2016 in Ottawa.

Before the Cudmore article was published, Norman was briefed by John Mack, then director-general of procurement services at National Defence, giving him an update of a teleconference in which Mack participated.

Emails received by Fraser appear to suggest Norman contacted him to advise of the potential delay.

The email, which Fraser then circulated to his superiors as coming “from Mark,” stated that “a cynical view could be folks manipulating the new government and trying to kill it (the Davie deal).”

The “folks” referred to are undoubtedly representatives of Davie’s rival, Irving Shipbuilding, whose co-chief executive James D. Irving wrote on Nov. 17, 2015, to Sajjan and procurement minister, Judy Foote, requesting his company’s proposal for a similar vessel be considered by the Liberals.

Boulanger considers the email “from Mark” the smoking gun that justifies charges of breach of trust by a public officer and wrongful communication of information, in violation of the Security of Information Act.

“The content of the email demonstrates that, despite being protected by cabinet confidence, Norman shared information subject to cabinet confidence … with Fraser,” he wrote. The allegation is that Norman tried to influence decision-makers to adopt his preferred outcome.

And that, essentially, is it.

Boulanger states that Norman’s conduct represented “a serious and marked departure from the standards expected of an individual in the official’s position of public trust.”

This may be true. Some of the emails purported to come from Norman, or paraphrased by Fraser to others, make hard reading, not least the request to discredit a maritime security analyst at Dalhousie University, Ken Hansen, who had publicly questioned the need for the Davie supply ship.

But, unless something more damning has been discovered on Norman’s computer, it looks like thin gruel for a criminal case.

Every journalist, lobbyist and politician in Ottawa trades on gossip, some of which leaks out from cabinet meetings.

Even if Norman did pass on sensitive information, did he benefit and was there criminal intent? Apparently not. Did he genuinely believe the navy’s capability to defend Canada would be dramatically diminished without access to a supply ship? It would seem so.

Based on the documentation available, the RCMP has taken a sledgehammer to crack a walnut, ruining the career of Canada’s second-most senior military officer in the process.

After the raid on his home in January he was abruptly removed from his post, without a public explanation.

The damage to Norman’s reputation will never be repaired but he can at least console himself with the thought of punitive damages likely coming his way, courtesy of the Canadian taxpayer.

• Email: jivison@nationalpost.com | Twitter:

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