Editor’s Corner article

Guilty until Proven Innocent
CHRIS MacLEAN  |  Mar 14, 2018

By Chris MacLean

In February 2018, the RCMP charged the Canadian Armed Forces’ second in command, its Vice-Chief of the Defence Staffwith one count of breach of trust. The government of Canada has a long-standing system in place (6.1.5), through which a public servant facing legal action related to his or her job, can access government funds to mount a proper defence. However, months before the charges were even laid, the government had rejected VAdm Mark Norman’s request for financial assistance because it had somehow decided the vice-admiral is guilty until proven innocent – without the dignity of (or legal right to) his day in court.

In January, defence journalist David Pugliese broke the story that the Department of National Defence/Canadian Forces senior general counsel Michael Sousa had already rejected the funding request. In a letter to one of Mark Norman’s lawyers, dated 20 Nov. 2017, Sousa stated: “In disclosing confidential government information respecting a Government of Canada procurement initiative to a third party without authorization, he does not meet the eligibility criteria.” The question is: on whose authority did Sousa make this assessment?

The same day that story was posted, an online GoFundMe account was set up to help pay legal fees for Norman’s defence. He was eventually charged on March 9th with one count of breach of trust. Supporters have raised more than $99K of its $200K target since it was set up on 22 January 2018, with the hope that the courts will recognize “what right looks like,” which is one of Norman’s favourite sayings.

The National Shipbuilding Procurement Strategy was initiated in 2010 under the Harper government with a goal to rebuild the Canadian shipbuilding sector and make it a financially viable contributor to the economy for the foreseeable future. The lack of large vessel work in recent decades had led to a lack of infrastructure and the human expertise had all but withered away. To great fanfare, the government chose two shipbuilders and quickly divided up a selection of much-needed vessels for the Royal Canadian Navy and Canadian Coast Guard between Seaspan on the west coast and Irving on the east coast. 

In the years since, the RCN has been caught in a bizarre controversy that began when it lost the last of its 40+ year old resupply ships earlier than anticipated – due to damage and rust-out. Referred to in the Navy as Auxiliary Oiler Replenishment (AOR) vessels, HMCS Protecteur was decommissioned in May 2015, and HMCS Preserver had been withdrawn from sea-going service in 2014, obliterating our resupply capability while deployed. The plan for new AORs at the time would have seen delivery of the first replacement in 2020, but that has been delayed and are not expected until 2021-2023.

Understandably, this caused a serious capability gap and there seemed no standard answers available to solve the problem. An interim solution of leasing existing vessels from other navies underscores the urgency and seriousness of the capability gap. The RCN was obliged to lease AORs from Chile (for the west coast fleet) and Spain (for the east coast fleet).

However, in the months leading up to the October 2015 election, another, some would say "more Canadian" option became apparent. A letter of intent to sole-source an atypical navy vessel was signed by Harper's Conservative government with a third shipyard, Chantier Davie Shipbuilding of Quebec, which had been digging itself out from financial woes. It seemed the Navy was going to be able to return to standard operation within a few years, and there was much rejoicing (to quote my favourite movie). However, the fallout after the Conservative defeat has caused the Navy much unexpected grief.

According to the sole-source agreement, the Davie shipyard, via its sister company Federal Fleet Services, would quickly begin to convert a civilian tanker vessel into a military supply ship for the Royal Canadian Navy. The RCN had been struggling to find options to resupply its vessels while deployed, and Project Resolve, as it was named, seemed amore sustainable option than short-term leasing from other nations. Federal Fleet's original proposal was for two ships (this is actually below a minimum requirement because, while there would be one vessel on each coast, it does not allow for a maintenance schedule), but the second ship option has so far been declined by Canada.

As Commander of the Royal Canadian Navy at the time, VAdm Mark Norman had been involved in discussions with Davie Shipbuilding about these new AORs.

This capability gap had been hampering naval operations, and the speedy plan to offset this deficit with a partial capability was seen by most as an almost perfect interim solution – the Navy would get some of its capability back, and this unexpected need would not impede the established National Shipbuilding Strategy (as it was renamed by the Liberals) building schedules of Canada's two chosen shipyards, Irving on the east coast and Seaspan on the west.

To objective observers, it seemed to be a most reasonable option to gain interim capability while the two shipbuilders in the National Shipbuilding Strategy (NSS) continued on course with their tightly-scheduled plans to build ships for the Navy and Coast Guard. Neither Irving on the east coast, nor Seaspan on the west, had the capacity to squeeze in even one short-turnaround vessel to fill that significant capability gap – they were both busy building infrastructure and hiring personnel and could not have possibly added to their work dockets. That said, the government has delayed, once again, the contract to Seaspan for the new resupply ships. We are still two years away from the original 2020 delivery – which is now being pushed to 2021-2023. Such a delay would have been a deadly blow to Navy logistics planners.

Actions speak louder than words. This truth should be applied to all of the players contributing this saga, and it will be a challenge for any judge to sort through. Were these many conflicting agendas all aimed at making sure a very basic RCN requirement (refueling while deployed) was going to be met? Or are there vested interests at play? Actions tell the real story, and it may require a court process to untangle and illuminate the many trails leading to the charges against one of Canada's most respected military leaders.

Fast forward to 2018 and the fact that Project Resolve has already completed sea trials on its first ship, named Asterix, and the RCN formally accepted her into service in January 2018, leads to the undeniable conclusion that this was the right course for the Navy. The fate of a second ship, to be named Obelix, is still a question mark, but the company feels the project was such a success that, at $600 million per year for a 7-year lease, it hopes government will eventually revisit the ballooning $2B per copy cost of the NSS contract. How Asterix handles the Navy's demands will certainly factor into the future equation.

Back to 2015... Despite the infrastructure and resource limitations mentioned above, both Seaspan and Irving submitted their own proposals for this new interim capability requirement, and were extremely displeased that a third option (Davie) was chosen. A well-publicized letter of complaint from Irving Shipbuilding to the new Liberal leadership caused the fledgling Cabinet to put a temporary halt on the program while it reviewed the contract. A hefty cancellation clause may have had something to do with the decision to allow the program to proceed, however, after word of the delay leaked to the press, the government apparently felt "embarrassed" into approving the contract to proceed (after a 2-month hold), and quickly scoped out someone to blame the leak on.

Fresh from the election victory, the Trudeau government wasted no time in contacting the RCMP about an alleged "leak", and an investigation was quietly initiated into the activities of the Commander of the Navy as 2015 drew to an end. Court documents have revealed that both Norman and an "unnamed government official" are alleged to have leaked cabinet confidences to an executive at Federal Fleet.

Many rumours circulate as to what made the Liberals suspect Norman (who was Commander of the Navy at the time), but those facts will only become clear when, and if, the matter proceeds to trial.

In 2016, the much-respected Vice Admiral Norman – whose favourite response to criticism of his being too harsh with new behavioural rules was to remind them that they know "what right looks like" – was appointed as the Vice Chief of the Defence Staff, second in command of Canada's Armed Forces.

In January 2017 the RCMP attained a warrant to search his home, and the investigation became public. That was when the Chief of the Defence staff, General Vance, announced that VAdm Norman would be relieved of his duties (with pay) until the matter gets resolved.

The threat of legal action caused VAdm Norman to incur legal fees, however, as mentioned earlier, the Treasury Board of Canada offers assistance for government employees encountering legal challenges related to the performance of their jobs to make sure they can afford to mount a solid legal defence – assistance that must be repaid if the defendant is found guilty.

The Treasury Board web site states the government Policy on Legal Assistance and Indemnification:

Provides legal assistance and compensation to Crown employees and matters greatly for the protection of the Crown’s interest, the fair treatment of its employees, and the effective management of an organization.

Furthermore, the approval for such assistance rests with the department "where the incident giving rise to the request first arose", which is DND.

According to the Treasury Board, there are only  three eligibility criteria for considering legal assistance for Crown servants. The decision rests in determining whether the Crown servant:

  • acted in good faith;
  • did not act against the interests of the Crown; and
  • acted within the scope of their duties or course of employment with respect to the acts or omissions giving rise to the request.

In a perplexing move, late 2017, DND rejected VAdm Mark Norman’s request for financial assistance to defend against allegations that he had breached the public trust (he had not even been charged at that point). “In disclosing confidential government information respecting a Government of Canada procurement initiative to a third party without authorization, he does not meet the eligibility criteria.”

By the wording of this explanation, it is clear that someone at DND has already decided, without the benefit of a court hearing, that the vice-admiral is guilty.

The search warrant application specified that the RCMP was looking for information related to three serious issues: breach of trust; wrongful communication; and allowing possession of a document contrary to the Security of Information Act.

Under relentless pressure from the daily press to provide information on the status of this investigation, the RCMP finally charged VAdm Norman with only the first item (breach of trust under Section 122 of the Criminal Code of Canada), presumably due to a lack of evidence on the other two.

A breach of trust charge requires the Crown to prove all elements (as noted below) of the offence beyond a reasonable doubt, and it is up to the Court to make that determination. An important case establishing precedent related to the VAdm Norman case is R. v. Boulanger, 2006 SCC 32 (CanLII), where breach of trust was found to mean a combination of malfeasance in public office plus a neglect of duty.

The offence of breach of trust by a public officer is established where the Crown proves beyond a reasonable doubt that:  (1) the accused is an official; (2) the accused was acting in connection with the duties of his or her office; (3) the accused breached the standard of responsibility and conduct demanded of him or her by the nature of the office; (4) the accused’s conduct represented a serious and marked departure from the standards expected of an individual in the accused’s position of public trust; and (5) the accused acted with the intention to use his or her public office for a purpose other than the public good, for example, a dishonest, partial, corrupt, or oppressive purpose.

An objective look at the weight that this obligation imposes on the prosecution should buoy Norman's supporters with the prediction, voiced in the Maple Leaf Navy Magazine, that "this case will likely never see the light of day."

Echoing the views held by many who have been following this case, Leo Knight (a retired RCMP investigator) recently wrote that this entire scenario "reeks of politics and seems to have little to do with justice."

With crowd funding building behind him, Vice-Admiral Norman will have the resupply necessary to mount a vigorous defence in front of an impartial judge. The courts will be able to justly determine "what right looks like."

– Chris MacLean, Editor, FrontLine Defence