Most days, there were a half-dozen, often more, lawyers from the Department of Justice arrayed behind Vice-Admiral Mark Norman, a physical reminder that what he was up against was the state, with its massive reach and awesome power.
The DOJ lawyers couldn’t begin to fit at the counsel tables, but spilled out onto the hard public benches.
Thus what Norman’s lead defence lawyer, Marie Henein, said at a press conference Wednesday after the Public Prosecution Service of Canada stayed the lone charge against her client: “No person should walk into a courtroom fighting their elected government or any sort of political factors.”
Yet that’s precisely what the 55-year-old Norman, until his suspension in January of 2017 the No. 2 man in the entire Canadian Forces, faced.
The PPSC and the Director of Public Prosecutions Kathleen Roussel, Henein said both in and outside court, did their job.
In late March, the defence team handed over its entire case — the fruits of months of defence investigation and witness interviews, some of whom neither the RCMP nor Crown lawyers had deigned to question — to prosecutors Barbara Mercier and John MacFarlane, who were open-minded enough to review and test what they saw.
This is what prosecutors are supposed to do.
They have a higher duty than ordinary lawyers, and it’s to fairness and truth, and it’s an ongoing duty.
Their inescapable conclusion?
They had no reasonable prospect of convicting Norman of breach of trust, which is the prosecutors’ test across the country for instigating or continuing a prosecution.
As Henein told Ontario Court Judge Heather Perkins-McVey, “In court, it is routine that we say that the prosecution has acted in the finest traditions of the bar but I think at this juncture in the political life of this country, it is important to point out exactly what that means.
“The tradition, a tradition that is so jealously guarded and protected by those who understand the value of a constitutional democracy … is a tradition of prosecutorial independence.”
Later at the press conference, lest there be any doubt what she meant, Henein introduced her all-female defence team with a shot across the bow.
“Fortunately,” she said with a nod to her client, “Vice-Admiral Norman didn’t fire the females he hired.”
This of course was an unmistakable reference to the deposed attorney-general Jody Wilson-Raybould and former Treasury Board president Jane Philpott, each of whom fought in different ways to protect the independence of the PPSC and the DPP in the SNC-Lavalin imbroglio. They paid the price for it, too, when Prime Minister Justin Trudeau booted them from caucus.
The happy result Wednesday, Henein said unequivocally, happened “Despite, not because of, the government.”
The government, in its various arms including the Prime Minister’s Office, the Privy Council Office, the Department of National Defence and Treasury Board, so collectively dragged its feet and stalled on disclosing key documents that the defence was forced to bring what’s called a third-party records application.
“We brought that application for a reason,” Henein said. “None of that (information) came willingly.”
Thousands of documents remain outstanding.
First, the government asserted cabinet confidence over all documents having to do with the Norman case, refusing repeated defence requests to waive it.
Then, two weeks after Henein filed the third-party records application, the government did an about-face, abruptly claiming what’s called public interest privilege.
Ultimately, it was left to Perkins-McVey to sort through thousands and thousands of documents, determine what was relevant, and disclose them. Even Tuesday of this week, the judge was still receiving more documents.
“The government has been at the table,” Henein said.
“They’ve been at the table with seven or eight lawyers from the Justice Department. The charges were referred by the (Privy Council Office), the PCO is the holder of records … to this day, because of the position taken by the PMO and PCO,” Norman still hasn’t got access to his own emails and records.
She noted that before the matter even got to court, almost a year before Norman was charged, Trudeau commented several times on it, once, in April of 2017, telling the Canadian Press the case was “likely going to trial.”
As Henein put it, “To say there was an interest (from political government) in this case puts it mildly” and reminded reporters “that the people standing in the way of that full disclosure was the government.”
She said what both this case and SNC-Lavalin demonstrated is that “justice system officials resist any sort of political interference … It’s a value very much worth fighting for.”
He had a free press, which kept the case in the headlines and the government’s tiny feet to the fire
And both cases, Henein said, show that there’s a failure in high places to understand the importance of prosecutorial independence and that “What you don’t do is, you don’t put a finger and try to weigh in on the scales of justice.”
The honourable man who is Mark Norman was graceful and generous in victory. He teared up only once, when he was thanking Canadians for their “spiritual and financial support,” and mentioned the Second World War veterans who “were giving me $5.”
He was lucky beyond bearing.
He had a magnificent defence team, headed by Henein (who wore what I consider her combat leather jacket to court Wednesday) and her co-counsel Christine Mainville.
As the weeks turned into months and months into years and it appeared increasingly that the trial dates reserved in August would never be possible — and that the trial might, happily for the government, not be held before the October federal election — Henein let it be known that if she had to shut down the rest of her practice to be ready for trial, she would do it.
She is a warrior. Mark Norman, with his almost four decades of service to the country, knows what that means.
Norman also had a public prosecution service that did its job.
He had a free press, which kept the case in the headlines and the government’s tiny feet to the fire.
And he had Heather Perkins-McKay, the slight judge with an extraordinary capacity for hard work (I often saw her deal with trademark kindness with those accused in the more ordinary Ontario Court cases that came before her, even as she juggled the Norman minefield) and who was funny, courteous, smart and on top of that enormous file and her game every day.
Absent any one of those elements, what Henein called the “resilient institutions” of this democratic country, and the Vice-Admiral might have had a different fate.
It was a close thing, after all.