An Ontario Superior Court justice has issued a ruling to lift a publication ban and unseal large sections of a redacted RCMP affidavit concerning the criminal investigation of Vice-Admiral Mark Norman for alleged breach of trust in leaking government secrets.
The Globe and Mail went to court requesting access to the RCMP affidavit used to get authorization to raid Vice-Adm. Norman's Ottawa on home on Jan. 9. The CBC, CTV and National Post later joined The Globe's court action.
In a ruling released late on Friday, Justice Kevin Phillips said the RCMP affidavit can be released, although details involving cabinet secrets will remain redacted.
"I order the documents forming the basis of this application to be unsealed and available to the public. Furthermore, I decline any sort of publication ban," Justice Phillips wrote.
Justice Phillips's decision is stayed for seven days to allow Vice-Adm. Norman's legal team to consider an appeal. The publication ban currently covers 76 of 123 paragraphs in the affidavit, about 60 per cent of the document.
In the unredacted sections, the RCMP accuse Vice-Adm. Norman of criminal breach of trust for leaking government secrets, an allegation that arises from a 16-month investigation into how cabinet deliberations were passed on to Quebec's Chantier-Davie Canada Inc. shipyard, which has a contract to provide a temporary naval supply ship.
Legal counsel for Vice-Adm. Norman had asked the court to keep the publication ban, saying that allowing Canadians to read the full document would deny the naval officer a fair trial and feed a "media circus."
Owen Rees, a member of the Norman legal team told Justice Phillips last week that divulging the entire warrant could stigmatize the country's former No. 2 military commander and potentially injure his ability to receive a fair trial – including by jury if he so chose.
Justice Phillips said he was confident the allegations in the RCMP warrant and production order would not influence or taint a jury.
The Mounties' investigation focused on activities that took place shortly after the Liberal government took power in late 2015 and paused the $667-million refit of a commercial cargo vessel as a temporary supply ship for the Canadian navy. The Harper government awarded the contract without competition to Chantier-Davie before the 2015 election.
"I note that the main statements allegedly attributable to Vice-Admiral Mark Norman are contained in e-mails apparently written by him," Justice Phillips said. "It cannot be said that the mere fact of the communications in question leads inexorably to a conclusion of guilt such that potential jury impartiality would be compromised."
The judge went on to say: "Nowhere is there any suggestion that the man was even thinking of trying to line his own pockets, or get any personal advantage whatsoever."
Vice-Adm. Norman had expressed concerns in e-mails obtained by The Globe that any delay in the supply ship refit could pose serious problems for the Royal Canadian Navy.
Justice Phillips also dismissed concerns the affidavit would stigmatize Vice-Adm. Norman, saying it might actually help his legal defence should he eventually be charged with breach of trust.
"In my view, the mindset and alleged communications arising from it is hardly the stuff of stigma or moral turpitude," he wrote. "At its highest, it appears that the potential allegation against Vice-Admiral Norman is that he was trying to keep a contractual relationship together so that the country might get a badly needed supply ship."
A publication ban would be difficult to enforce, particularly if parts of the RCMP affidavit were unsealed, he said, arguing it is better to put the information in the hands of responsible news organizations.
"What the mainstream media are selling is the stamp of truth and reliability. They have a product worth paying for only so long as they maintain an earned reputation for accuracy and responsibility," the judge wrote. "Benching the mainstream media by a publication ban while unsealing the documents in question would just cede the field to disseminators of information unburdened by motivation to care about any long-term reputation for truthful, accurate and balanced reporting."
Media lawyer Peter Jacobsen, who represents The Globe and its media partners, said the judge's ruling will have far-reaching impact for media coverage of the courts and police investigations.
"This is an important decision affirming the oversight duty of the mainstream media to the public," he said. "Here there is a clear public interest, and a need for public oversight, so the public can understand why the court granted the RCMP, Canada's senior police, a very intrusive search warrant against the Canadian Armed Forces' second in command."