Judge reserves ruling on Mark Norman publication ban

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Vice-Admiral Mark Norman's legal counsel is asking an Ontario judge to keep in place a publication ban on large sections of an RCMP affidavit that accuses the veteran naval officer of criminal breach of trust, saying that allowing Canadians to read the full document would deny the naval officer a fair trial and help feed a "media circus."

The Globe and Mail, CBC and the National Post were in an Ottawa court on Thursday arguing for full disclosure of the RCMP search warrant used to raid Vice-Adm. Norman's Ottawa home on Jan. 9. A publication ban currently covers 76 of 123 paragraphs in the affidavit, roughly 60 per cent of the document.

Owen Rees, a member of the Norman legal team headed by Toronto lawyer Marie Henein, told Superior Court Justice Kevin Phillips 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.

"This is going to be, if I may put it bluntly, the biggest show in town. It is going to be a media circus if Vice-Adm. Norman is charged and this goes to trial. This is not a normal run-of-the-mill case," Mr. Rees said.

Publishing the full contents of the warrant could "cement impressions in the minds of the jury long before [Vice-Adm. Norman] has had an opportunity to defend himself."

Tae Mee Park, the lawyer for The Globe and its media partners, said the public has a right to know why Vice-Adm. Norman was relieved of his duties and is under investigation. None of the redacted information in the RCMP documents is inflammatory and some of the evidence might help Vice-Adm. Norman in a court of law, she said.

"We are dealing here with a public official who is accused of breach of trust," she told the court. "We are not dealing with an individual who is accused of a serious crime, such as murder or terrorism, where the onslaught of pretrial publicity is so emotional and inflammatory that it is impossible to get an impartial jury."

Ms. Park argued that media coverage of Vice-Adm. Norman has been balanced and that his legal team has publicly defended him, as have many supporters. Some stories in the National Post have painted the Vice-Admiral in a favourable light, she noted.

"An accused person should enjoy the right to a fair trial, but not the right to be free from adverse publicity before his trial. Negative publicity alone, Your Honour, does not preclude a fair trial," Ms. Park said.

Mr. Rees shed new light on the RCMP case against Vice-Adm. Norman, whom the Mounties accuse of leaking government secrets – an allegation that arises from a 16-month investigation into how cabinet deliberations were passed on to Quebec's Chantier-Davie shipyard. Vice-Adm. Norman has not been charged with anything and the RCMP investigation is continuing.

The Mounties' investigation focused on activities that took place shortly after the Liberal government took power in late 2015 and temporarily paused a massive $667-million refit of a commercial cargo vessel as a temporary supply ship for the Canadian navy. The Harper government awarded this contract without competition to Chantier-Davie, a Quebec City shipyard, before the 2015 election.

Mr. Rees told the court the RCMP investigation relates to allegations that Vice-Adm. Norman shared "cabinet confidences with persons outside the government." Mr. Rees also said the redacted information in the affidavit includes alleged communications such as e-mails between Vice-Adm. Norman and another person.

"We are talking about the heart, I expect, of the Crown's case … against our client," he said. "So I think that weighs in favour of a publication ban."

He suggested the publication ban should be in place for two years or until a court trial is over. If the Crown decides not to charge Vice-Adm. Norman, the affidavit can be released, Mr. Rees said. Later, he suggested the Norman team might be open to a shorter ban, such as nine months, with a return to court after that to reconsider the need for the ban.

Crown lawyer Moray Welch supported Mr. Rees's position.

Chantier-Davie also had legal counsel in court to express its support for a publication ban on information commercially sensitive to the Quebec shipyard and certain portions affecting the company's reputational rights as an innocent party.

Justice Phillips reserved judgment, but told the court he was troubled by the fact that some of the evidence cannot be made public because it falls under cabinet secrecy laws. He expressed concern that this could prejudice Vice-Adm. Norman's potential trial.

"Is there an unfairness with releasing a document that purports to list a whole body of information that is blacked out due to cabinet secrecy and letting Admiral Norman out on his own exposed?" he said.

Should Justice Phillips lift the publication ban, Vice-Adm. Norman's counsel asked the court for seven days to decide whether to appeal to a higher court.