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Vice-Admiral Mark Norman’s legal team is challenging the government’s claim of solicitor-client privilege on a number of documents it says it needs to defend the senior naval officer, questioning how the assertion could apply to staff in the Prime Minister’s Office who are not lawyers.

The government has made the argument in the breach-of-trust case against Vice-Adm. Norman over documents and e-mails between senior staff in the PMO. The government also claimed solicitor-client privilege over an entirely redacted 60-page memo that departing Privy Council Clerk Michael Wernick penned to Prime Minister Justin Trudeau.

In a two-day pretrial hearing in the case, Vice-Adm. Norman’s defence lawyers argued that documents, including any memos between Mr. Trudeau and Mr. Wernick and between senior staff in the PMO and the Privy Council Office (PCO) should not be covered by solicitor-client privilege.

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In the defence’s application filed in court, it says “the claims of solicitor-client privilege are over broad, in certain instances privilege has been waived, and to the extent the privilege is valid, it ought to be lifted as the records are necessary to establish the applicant’s innocence.”

Justice Department Lawyer Robert MacKinnon said there are 36 documents in question, and that seven of those documents have been released to the defence and the remaining 29 have already been determined in court that solicitor-client privilege applies.

Justice Heather Perkins-McVey, who will ultimately decide where privilege should be applied and which documents should be disclosed to ensure Vice-Adm. Norman has a fair trial, interjected. She said she felt that there was still “some remaining uncertainty” regarding documents that claimed solicitor-client privilege, and that it might be something the court revisited.

Vice-Adm. Norman was suspended as the military’s second-in-command on Jan. 16, 2017, and charged last year over allegedly leaking government secrets in an attempt to influence cabinet’s decision on a $700-million shipbuilding contract with Quebec’s Davie shipyard. He has denied any wrongdoing.

Among the documents the defence team is trying to obtain is a chart allegedly showing how government officials concluded that Vice-Adm. Norman passed cabinet secrets to Davie Shipyard.

Defence Lawyer Christine Mainville in her opening arguments said the first stage is to determine “whether privilege is properly claimed” … adding the defence is trying to understand who the government is alleging is the client and the lawyer in each case.

Marie Henein, who is also representing Vice-Adm. Norman, spent much of the afternoon cross-examining Patrick Hill, director of operations at the PCO, on why solicitor-client privilege had been claimed for a list of documents and communications relating to her client’s case.

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In some instances, he said, it was because a document had a solicitor-client stamp, or because it was prepared by a lawyer, adding it’s done on a “case-by-case” basis.

She also walked Mr. Hill through a lengthy list of memos and communications in which solicitor-client privilege had been claimed, including e-mail chains between staff in the Prime Minister’s Office and the PCO.

Communications of top staffers, including Elder Marques, a senior adviser to the Prime Minister, Zita Atravas, chief of staff to the defence minister, and communications adviser Kate Purchase, among others, were protected by solicitor-client privilege.

Ms. Henein questioned whether legal advice was part of any of these discussions. And she asked Mr. Hill to identify, in some circumstances, the client or the lawyer.

In its application, the defence also pointed to Mr. Wernick’s testimony before the Commons justice committee on Feb. 21, 2019, over the SNC-Lavalin scandal. The defence wrote that his “varying stances on the protection of cabinet information in this case culminated in a decision not to invoke any protection over cabinet confidences required to prosecute the matter, and public-interest immunity in respect of the remaining cabinet information.”

The pretrial hearing will resume on Wednesday.

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