“Even a fish wouldn’t get into trouble if it kept its mouth shut.” Korean proverb.

Introduction:

As most Canadians who follow the news will know, Vice-Admiral Mark Norman, the Vice-Chief of Canada’s Defence Staff was suspended from his position in 2016 and subsequently prosecuted for the alleged criminal offence of breach of trust. He was accused of having leaked secret Canadian government information about a Navy shipbuilding contract. On May 8, 2019 the prosecutor stayed the charges against him and the judge told him that he was free to go.

But that has not ended the controversy about the prosecution. There has been extensive speculation about political interference from the Prime Minister’s office.  That speculation may have gained some support from the evidence of Mr. Norman’s superior, Chief of the Defence Staff General Jon Vance, that Vance had discussed the matter with Mr. Trudeau and his top advisors, including then-principal secretary Gerald Butts and chief of staff Katie Telford. The Prime Minister has denied any political interference and to date no one has produced any evidence of it. I am inclined to believe the Prime Minister. However, the absence of direct interference by elected politicians is not the same as lack of political considerations in the prosecution.

As events have unfolded, the prosecutor, the RCMP and the Prime Minister all look bad.

The Prosecutor’s Inappropriate Public Comments

The Crown prosecutor, Barbara Mercier, said, as quoted in the National Post story of May 17, 2019:

“Based on new information, we have come to the conclusion that given the particular situation involving Vice-Admiral Mark Norman, there is no reasonable prospect of conviction.”

Instead of ending it there, she went on to say:

“It continues to be our view that some of Vice-Admiral Norman’s actions were secretive and inappropriate. However, inappropriate does not mean criminal.”

It is not part of the prosecutor’s job to decide whether someone behaved “inappropriately”.  That is merely a subjective criticism. Inappropriate by what legal standard? And what did he do that fell short of that standard?  Her personal opinion of him should have been kept to herself. Her work was done by announcing the staying of the prosecution, after which she should have ended the media conference. But she tried to excuse the apparently needless prosecution by saying, in effect, that “he was a bad guy, so the prosecution was justified”. That comment was unfair to Mr. Norman.

Remarkably, the prosecution proceeded despite the RCMP’s obviously incomplete investigation. Most of the facts of the alleged offence arose during the Harper government’s term in office, when Mr. Norman would have been acting under directions from Conservative cabinet ministers. The RCMP failed to interview any of these ministers, some of whom later came forward and offered to testify on Mr. Norman’s behalf that he was following their cabinet’s instructions.  The RCMP never interviewed Mr. Norman himself, to get his side of the story. It might have been useful for the RCMP to have heard from Mr. Norman that “here’s what I did, and here’s why”, yet they never asked. In light of this, the prosecution might have had some reservations about the quality and completeness of the evidence of intentional dishonesty against someone who had achieved such high military rank.

Despite admitting that there was no reasonable prospect of a conviction, the prosecutor did not withdraw the charges, they were merely “stayed”.  A stay means that the charges can be proceeded with at any time during the next year.  If they are not proceeded with within a year the stay becomes permanent. Meanwhile, for a year, the threat of renewing the prosecution continues to dangle over Mr. Norman’s head. Undoubtedly, this will have to be a factor in his decision as to whether to sue for damages.

The Prime Minister’s Inappropriate Public Comments

The National Post story of May 17, 2019 reported that back on April 6, 2017 the Prime Minister responded to a question from a journalist about the alleged leak of confidential information by Mr. Norman:

“This is an important matter that is obviously under investigation, and will likely end up before the courts, so I won’t make any further comments at this time,” the Prime Minister said.

The Prime Minister should not have been predicting a potential prosecution during an ongoing RCMP investigation. Later that evening Mr. Norman’s lawyer, Marie Henein, gave the Prime Minister an opportunity to back out graciously by telling the media: “I expect what the prime minister meant to say is that he declined to comment further given that the matter is under investigation.” But the Prime Minister didn’t take the hint. Almost a year later he again commented during a televised town hall in February 2018 that Mr. Norman was headed to trial, although he had still not been charged. How and why did the Prime Minister know that charges would be laid well ahead of time? Surely his announcing his prior knowledge would give rise to suspicions of political interference in a prosecution. Like Barbara Mercier he would have been better off remembering the Korean proverb quoted at the top of this post.

On one theory, he knew because the Prime Minister’s Office (PMO) had been involved in political interference in this case. As noted earlier, that theory may gain some support from the evidence that General Vance had discussed the matter with Mr. Trudeau and the PMO. Although that would explain how the Prime Minister was briefed on the matter, it provides no evidence that the Prime Minister or anyone in the PMO told anyone in the prosecution service that they should prosecute Mr. Norman.

Knowing something and doing something are quite different matters. Just because the Prime Minister said something to the media that he should not have said does not prove that he did something he should not have done. I am not inclined to believe in conspiracy theories. I have seen no evidence on which to doubt the Prime Minister’s word that neither he nor his staff interfered in the prosecution. But there may be more to this story.

Was There Another Form of Political Pressure on Prosecutors?

Even if there was no political interference by elected politicians or their personal staff, that does not necessarily mean that the prosecution of Mr. Norman was not to some degree politicized.

It should be recalled from the appearance of former Privy Council Office (PCO) head Michael Wernick at the SNC-Lavalin hearings before the House of Commons Justice Committee that his role differed little in practice from that of the Prime Minister’s own office staff. He functioned as much as a spokesperson for the Prime Minister, exerting pressure on former Attorney General Jody Wilson-Raybould, as anyone on the Prime Minister’s own staff.

Although the PMO should not be communicating with prosecutors about a potential prosecution the PCO is in a different category. The PCO is not staffed by elected officials but by public servants. Therefore, if there had been any advocacy from the PCO to prosecute Mr. Norman that would, technically, not be considered “political pressure”. It might have had the same effect, but it would have escaped the “political” label. Thus, the Prime Minister could truthfully deny any political interference.

The PCO had conducted its own investigation of the November 2015 leak. It probably would have communicated its investigation results to the prosecutors. The PCO investigation found that this was a big leak, because many people knew about the planned cabinet committee discussion about the shipbuilding contract beforehand, and even more people knew the result afterward, including via six separate leaks to various lobbying firms and journalists. This brings to mind the famous comment of James Reston, an award-winning American journalist: “The ship of state is the only known vessel that leaks from the top.”

Again, I have not seen any evidence demonstrating overt pressure from the PCO. But, given the Prime Minister’s public statements and the PCO’s investigation, it would have been a lot easier for the prosecutors to prosecute someone – anyone – than to fail to do so. To have declined to prosecute Mr. Norman would have made the Prime Minister look foolish after his ill-advised media comments described above. The prosecutors would have felt some political pressure to prosecute Mr. Norman even if they hadn’t been told anything directly by either the PMO or the PCO. As a result of the statements of the Prime Minister and the investigation by the PCO, the prosecution of Mr. Norman took on momentum and a life of its own.

Even after the prosecution began, the evidence of this perceived pressure is seen in two places. First there was the prosecution’s widely reported persistent refusal to provide Mr. Norman’s defence team with copies of the documents under government control that the defence needed to defend Mr. Norman. Second, there was the entirely inappropriate, face-saving comment by prosecutor Barbara Mercier when announcing the stay of the prosecution.  This was no ordinary prosecution carried out in the interests of justice.  It began to look like a determined attempt to “win” by convicting the Vice-Admiral.

Should Mr. Norman Sue Someone?

The harm to Mr. Norman is clear, and will be long-lasting.  Can he sue for damages?  And if so, who could he sue?

In my view, a suit for damages against the prosecutors is unlikely to succeed. The prosecutors were not malicious, and there is no basis in law in Canada (yet) for a suit for  negligent prosecution. Even in the unlikely event of success at trial, that would be appealed as far as possible, resulting in large costs and risks for the plaintiff.

A suit against the RCMP for negligent investigation, while still difficult, has a better chance of success, thanks to a Supreme Court of Canada decision in 2007. In Hill v Hamilton-Wentworth Regional Police Services Board, [2007] 3 SCR 129, the Court held that a “negligent investigation” is a basis for a lawsuit for damages in Canada. Someone harmed by a negligent investigation could, therefore, sue for damages.

However, if the accused was acquitted or if the prosecution was stayed the monetary damages from a negligent investigation would be difficult to quantify, and therefore, to prove. The defence would be entitled to argue that the plaintiff wasn’t convicted, and therefore wasn’t harmed in a legally recognized manner.

After a prosecution based on a proven negligent investigation is terminated without a conviction the former accused could sue for legal costs and loss of income if any pay and benefits withheld during the prosecution are not fully restored. Going beyond that, the emotional damage done to the accused and his family cannot be quantified except by picking a number out of the air, which courts are generally reluctant to do. What is even more difficult is quantifying the harm the prosecution has done to Mr. Norman’s future career between the time of his suspension from duty and his normal retirement date some years from now.

The House of Commons recently voted unanimously to apologize to Mr. Norman. As a symbolic gesture that was emotionally satisfying, but it won’t do much to help his career. After what he and his family have been put through, the government could do a lot more for him than supporting the opposition’s motion of an apology.

Since General Vance had replaced Mr. Norman as second-in-command, Mr. Norman can’t have his old job back without removing his replacement, who, presumably, has done nothing to deserve removal. What work is there for someone who had formerly been second-in-command when that job is now filled?

More fundamentally, given the haste with which General Vance suspended Mr. Norman from his active duties without hearing his side of the story, and his conversation with the Prime Minister and the PMO about the prosecution, the personal relationship between the two men will probably never be the same. Although Vice-Admiral Norman has said that he is eager to get back to work (what else could he have said) and although General Vance has said that he is looking forward to discussing Mr. Norman’s future with him, that is bound to be a difficult discussion. For all practical purposes, the prosecution has effectively undermined, if not outright destroyed, Vice-Admiral Norman’s military career, at least for as long as General Vance would be his superior.

What Next for Vice-Admiral Norman?

His problem was caused by the perceived need to throw someone under the bus for a widespread leak. It turns out they chose the wrong sacrificial victim. He fought back and won. There is still another person who may be prosecuted, but that doesn’t fix the harm to Mr. Norman – harm that will continue unless the government does something to remedy it. He is too young to retire and has many years of useful work ahead of him.

If General Vance was to retire now or be promoted out of his current position Vice-Admiral Norman could be promoted into that job. Alternatively, Vice Admiral Norman could be appointed as an ambassador to a suitable country, or be given a senior position in the Canadian public service such as Deputy Minister of Defence or of Public Services and Procurement Canada.

However, the Prime Minister may still distrust Vice-Admiral Norman, and be reluctant to appoint him to a higher position. In any event, the decent thing to do now would be to discuss with Vice-Admiral Norman’s lawyers what Canada can do to make up for the harm the prosecution has inflicted upon him.