Crown has a high bar to cross in Mark Norman breach-of-trust case: expert

The country's second-highest-ranking military commander will appear in court today to face a single charge of breach of trust in an extraordinary case that will offer a new test of the RCMP's sensitive investigations unit.

The charge against Vice-Admiral Mark Norman was laid last month following nearly two years of Mounties investigating an alleged leak of cabinet secrets.

The RCMP focused their probe on published reports in November 2015 that the Liberal government, newly elected at the time, was having second thoughts about a $668 million contract to lease a supply ship for the navy.

The leak embarrassed the government, which relented and allowed the leasing project, being run out the Chantier-Davie shipyard, in Levis, Que., to proceed.

You can define what a cabinet confidence is. That is pretty easy. But you have to live it.- Military law expert Michel Drapeau

The RCMP unit leading the probe is the same one that investigated the Senate expense scandal, which ended with Sen. Mike Duffy being charged with — and later acquitted on — 31 counts of fraud, breach of trust and bribery.

Today's hearing is just the beginning of the legal process, which could culminate in a trial sometime next year, just prior to the next federal election.

There's a lot at stake for just about everyone involved in the case, said a military law expert.

Retired colonel Michel Drapeau said this case represents the first time a senior leader in the Canadian military has been prosecuted for alleged corruption.

A high legal hurdle

The legal bar that the Crown will have to meet in order to prove a breach of trust was set fairly high by the Supreme Court of Canada.

In a landmark 2006 case against a former local police chief in Quebec, the high court said that prosecutors must prove criminal intent in order to prove breach of trust — that there has to be some personal benefit involved, and that the actions of the government official have to amount to a "marked departure" from acceptable standards of conduct.

That's going to be a steep hill for the Crown to climb, said Drapeau.

"It has to be demonstrated that he had a culpable intent. Wow. To do that you have to look at what benefit, what personal advantages there were. Does he get a promotion out of it?"

The Mounties alleged, in search warrants unsealed last year, that they believed Norman was carrying on an inappropriate back-channel conversation with an old friend who is now a senior executive at the Quebec shipyard where the leased supply ship was being outfitted for the navy.

When the Liberals put the project on hold, RCMP claimed Norman leaked the decision to the shipyard, which passed it along to lobbyists and, eventually, the media.

"I believe Norman did this to influence decision-makers within government to adopt his preferred outcome," RCMP Cpl. Matthieu Boulanger wrote in the warrant used to search Norman's home.

Whether the Crown can point to a motivation more nefarious than a wish to win a bureaucratic turf war remains to seen, said Drapeau.

The other major obstacle facing prosecutors is something that may be outside their control: the fact that information is used as political weapon in Ottawa every single day.

Leaks and off-the-record briefings are standard tools deployed by politicians and public servants to shape the political message.

Drapeau said the Crown's ability to argue Norman's alleged behaviour was a "marked departure" from the Ottawa norm is being sorely tested almost every week.

The Daniel Jean factor

The most recent example is the political brawl over whether national security adviser Daniel Jean revealed sensitive cabinet information in background discussions he had with journalists during Prime Minister Justin Trudeau's recent trip to India.

On Monday, Parliament's national security committee announced it was conducting a review of Jean's actions that would look at, among other things, "inappropriate use of intelligence."

The Liberal government has insisted Jean didn't cross the line. But the key question in the Daniel Jean affair — what is, and is not, a cabinet secret, and how such secrets should be handled — is also in play in Norman's case.

"You can define what a cabinet confidence is. That is pretty easy," said Drapeau. "But you have to live it. Ministers and other people of government use confidences and purposely leak information that is and should be protected as cabinet confidences."

Prime Minister Justin Trudeau may have complicated the work of the Crown by saying publicly that he expected Norman's case to go to trial. (Chad Hipolito/Canadian Press)

Another perceived point of vulnerability for the Crown likely will be Prime Minister Trudeau's own words. On at least two occasions, Trudeau said he expected the case against the admiral to end up in court.

Norman has been suspended but not removed from his position as vice-chief of the defence staff since shortly after his home was raided by the RCMP in early January 2017.

Drapeau said that, even if he is acquitted, Norman could face separate administrative charges in the military justice system, notably charges of prejudice to good order and discipline.

"If they really wanted to draw blood and punish him, which seems to be the intention of government, they could get it done that way," he said.