The government redacted the memo claiming solicitor-client privilege, prompting the judge to point out that Wernick is not a lawyer

OTTAWA — The next battle in the criminal case of Vice-Admiral Mark Norman will be over redactions to memos written by senior government bureaucrats — especially a 60-page memo from Privy Council Clerk Michael Wernick to Prime Minister Justin Trudeau that has been entirely blacked out.

Norman’s lawyer, Marie Henein, told an Ottawa court Thursday that the government redacted the memo claiming solicitor-client privilege, prompting the judge to point out that Wernick is not a lawyer.

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Henein said there is a list of redacted documents the defence will challenge the solicitor-client privilege claim, but mentioned two other key documents: a 64-page memo from Privy Council Office lawyer Paul Shuttle to Wernick written on Oct. 19, 2018 and a 13-page memo from Shuttle to Wernick written on Dec. 22, 2017. Wernick’s memo to Trudeau was dated Oct. 24, 2018.

“The issue is whether there is a viable claim of privilege on this at all, and then, if there is a viable claim of privilege, whether or not an exception should apply,” Henein said.

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Court will hear the defence’s application to lift the redactions on April 16 and 17.

Norman’s lawyers filed notice of application for third-party records on Oct. 12, 2018 — about two weeks before Wernick’s memo to Trudeau. That application set out in detail which government records the defence would be seeking.

The Privy Council Office is the government department that supports the Prime Minister’s Office and the federal cabinet. In previous court hearings, Henein’s lawyers have raised concerns that Privy Council lawyers were discussing trial strategy with Crown prosecutors — a claim the Public Prosecution Service of Canada has strongly denied. “The PPSC has not sought or received instructions in respect of the prosecution of Mr. Norman from the Privy Council Office or any other government department or body,” said a statement from the prosecution service on Feb. 12.

Norman, the former second-in-command of the Canadian Forces, is facing a criminal charge of breach of trust over an allegation he systematically leaked cabinet information about a $700-milllion navy supply ship procurement project.

Norman’s lawyers want to view the Privy Council memos in order to prepare their abuse-of-process motion, which was scheduled to be heard this week but is now pushed off until at least May due to delays in disclosure. The abuse motion will likely allege political interference, among other issues, and will seek to have the case dismissed before it gets to trial, scheduled for August.

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Most of the case so far has been consumed by a fight over disclosure of documents, and Norman’s lawyers have been focused recently on a circle of senior government officials including Wernick and Trudeau. Justice Department lawyers told the court on Thursday they have now provided the judge with about 7,000 documents for her to review, and have about 1,000 documents still to go.

Before handing them over to Norman’s lawyers, Justice Heather Perkins-McVey reviews the documents for possible redactions and to determine whether they are relevant to Norman’s defence. She is expected to release a ruling shortly on which documents she determined were relevant.

But Henein told the court there had been almost no disclosure from Wernick until the redacted memo.

“As you know, we have been pursuing these documents and emails and all sorts of correspondence,” Henein told the court. “Mr. Wernick has not produced a single note. We’re advised there’s no note, there’s no email, there’s no nothing. And then we get a 60-page memo that’s redacted.”

She said she has asked Justice Department lawyers to go back to Wernick and his top staff to obtain a list of any meetings they ever attended on the Norman case and the names of those in attendance.

Wernick, the country’s top civil servant, has been the subject of controversy over his recent testimony in the SNC-Lavalin affair, in which he defended himself and Trudeau against the allegation they pressured former attorney general Jody Wilson-Raybould to defer a criminal prosecution of the Montreal-based engineering company.

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During one of his appearances before the House of Commons justice committee, Wernick said he wasn’t a lawyer and thus couldn’t give legal advice on whether Wilson-Raybould was restricted by solicitor-client privilege. “I am not a lawyer, but I use them a lot,” he told the committee on Feb. 21. “I am in no position to give this committee legal advice.”

The Justice Department may argue, however, that the memo at issue in the Norman case contained legal advice from Privy Council lawyers despite being written by Wernick.

Wernick’s SNC-Lavalin testimony sparked backlash from opposition MPs who felt he was being too partisan in supporting Trudeau and the government. Wernick announced his early retirement on March 18, though did not give a specific day he would step down.

“Recent events have led me to conclude that I cannot serve as Clerk of the Privy Council and Secretary to Cabinet during the upcoming election campaign,” he said in his statement. “It is now apparent that there is no path for me to have a relationship of mutual trust and respect with the leaders of the Opposition parties.”