Fact Sheet: Third Party Records Application – Her Majesty the Queen v. Mark Norman

Background

On October 12, 2018, defence counsel in the matter of Her Majesty The Queen v Mark Norman filed a Notice of Application for Third Party Records seeking documents from seven government organizations.

Those seven organizations are: the Department of National Defence, Public Services and Procurement Canada, the Atlantic Canada Opportunities Agency, the Department of Justice Canada, Treasury Board Secretariat, Privy Council Office, and the Prime Minister’s Office.

The Attorney General of Canada and the Public Prosecution Service of Canada have distinct roles in relation to the request for documents and the prosecution itself. Here is a description of those roles:

• Role of the Attorney General of Canada (Crown legal counsel)
  Counsel for the Attorney General of Canada, on behalf of the organizations mentioned above, is providing these documents to the Court in instalments as directed by the judge for her review.
• Role of the Public Prosecution Service of Canada (PPSC)
  As with all federal criminal prosecutions, the prosecution in this case is led by the Public Prosecution Service of Canada (PPSC), which is independent from the Department of Justice. The PPSC was created on December 12, 2006, by the Director of Public Prosecutions Act. Questions on the prosecution of this case should be directed to the PPSC.

Process

The process for the identification, review and production of documents follows a two stage process set out by the Supreme Court of Canada case of R v O’Connor. 

First Stage:

• At the first stage, the judge identifies which documents are likely relevant to the criminal proceeding.
• At this stage, prosecutors from the Public Prosecution Service of Canada, defence counsel, and counsel for third parties (from the Department of Justice, representing the government departments involved in the third party disclosure) all make submissions to the Court as to which documents do or do not satisfy this “likely relevance” step.
• The judge presiding over the case then makes a ruling identifying which documents she deems likely relevant to the case.

Second Stage:

• At the second stage, the judge evaluates whether the documents provided on behalf of the third parties, which met the first threshold outlined above, are actually relevant to the proceedings. 
• The judge also assesses any claims of solicitor-client and litigation privilege, public interest immunity (such as Cabinet confidences) and privacy interests in the documents, and balances the competing interests.
• Any documents that the judge determines are relevant to the proceedings are then disclosed to the Crown and defence counsel, subject to any valid claims of privilege, public interest immunity or privacy.

Please note that, pursuant to the Access to Information Act, any access to information (ATI) requests related to this case will be processed by the department or agency in which the documents originated.

Updates

As of May 8, 2019, when a stay of proceedings was granted in the matter, a total of 8,018 documents had been provided to the court.