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Politics Norman’s lawyers argue Wernick waived privilege by commenting publicly on breach-of-trust case during SNC-Lavalin testimony

Vice Admiral Mark Norman arrives at court in Ottawa on Tuesday, April 19.

Sean Kilpatrick/The Canadian Press

Vice-Admiral Mark Norman’s defence team pointed to the words of departing Privy Council Clerk Michael Wernick during his SNC-Lavalin testimony before the House of Commons justice committee in their continued argument over access to documents where the government has claimed privilege.

Defence lawyer Christine Mainville argued Wednesday during a pretrial hearing in the breach-of-trust case against the senior naval officer that when Mr. Wernick voluntarily commented on a decision he made regarding the Norman matter during a parliamentary committee, he waived privilege on documents by speaking publicly about the basis of his decision.

She was referring to comments Mr. Wernick made before the Commons committee in February when he said: “I made a decision, of my own volition, with my own authority, that the easiest way to deal with the Norman matter was to let the judge decide what was relevant. I did that last October. That is an exception and an anomaly, but that’s an example of our role. I have a very statutory role under the Evidence Act with regard to cabinet confidence.”

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Ms. Mainville argued that waiving privilege can occur “by implication” or “where fairness requires it,” and that Mr. Wernick’s comments meant that legal advice didn’t factor into his decision on how to handle the cabinet documents.

“He takes ownership,” she said, “He says: ‘It was me, it was all me.’ ”

The government has claimed solicitor-client privilege on a number of documents the defence says it needs to defend Vice-Adm. Norman.

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.

Ms. Mainville argued that despite the government claiming privilege for Mr. Wernick’s documents that relate to the case, they should be released because of the comments he made. She also highlighted Mr. Wernick’s comment about the “easiest way” to deal with the case, suggesting it was strategic, rather than a legal consideration.

Justice Heather Perkins-McVey questioned whether it’s possible Mr. Wernick overstated his independence and wondered if he did seek legal advice.

She also asked whether Mr. Wernick’s comments would be protected by parliamentary privilege, meaning the defence team couldn’t use his words in their case.

Department of Justice lawyer Robert MacKinnon argued parliamentary privilege would apply because it extends to witnesses who testify before committees.

Ms. Mainville later argued that parliamentary privilege would not apply, saying it applies when a witness is testifying on the topic that brought them before committee in the first place, arguing that Mr. Wernick’s comments on the Norman matter were not related to the SNC-Lavalin affair.

Mr. MacKinnon also said Mr. Wernick’s comment before the justice committee was “off the cuff” and had been publicly acknowledged, saying allowing the court to decide what documents should be released would be the easiest way for the trial to proceed.

Ms. Mainville later took aim at the Privy Council Office’s legal team, saying it’s not an office that would give unbiased advice and alleging it is partisan in many respects.

“It … admittedly recognizes that it has to take into account partisan considerations. It’s not an objective, impartial lawyer providing advice and so in certain circumstance it’s political advice essentially and we say that is not governed by solicitor-client privilege.”

Another pretrial hearing has been scheduled for May 8.

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