Several witnesses in Norman trial still haven’t searched personal records for evidence, court told

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Several major government figures at the centre of the criminal case against Vice-Admiral Mark Norman have not searched their personal email and phones for correspondence relevant to the case, despite the instructions of court-ordered subpoenas.

Zita Astravas, who serves as the chief of staff to Defence Minister Harjit Sajjan, was called to testify Thursday at a pretrial hearing in the breach-of-trust case against Norman.

She said the advice she received from lawyers at National Defence was that she was required only to surrender communications from her work-provided BlackBerry phone.

Norman’s defence team, led by Toronto lawyer Marie Henein, has been fighting in court for the disclosure of thousands of federal government documents — and have accused the federal government of conducting a selective and haphazard search for those documents.

In testimony Wednesday, Chief of the Defence Staff Gen. Jonathan Vance acknowledged that he had not searched his personal email or his iPhone for anything that might relate to the case. Gen. Vance has insisted he doesn’t conduct any work-related business on his non-government devices.

Earlier this week, lawyers for federal cabinet minister Scott Brison delivered to court personal emails relevant to the case, separate from his government accounts.

Norman, the former commander of the navy, has been charged with one count of breach of trust and is accused of leaking cabinet secrets related to a $668 million contract to lease a supply ship for the navy. He was suspended as the military’s second-in-command in January, 2017.

Astravas was director of issues management in Prime Minister Justin Trudeau’s office between November 2015 and August 2017 — the time period when the criminal investigation involving Norman first became public. She would have been the public servant tasked with briefing the prime minister on important issues and daily crises.

Astravas testified she didn’t know if her former email account had been searched in response to a subpoena issued by Norman’s lawyers.

Robert MacKinnon, the federal lawyer responsible for the record search, told the court the instruction given to all departments was that all devices must be searched. He said that instruction will be repeated.

​The pre-trial hearing has focused largely on the collection and production of communications relevant to the case. The actual trial is scheduled to begin in August, just months before the federal election.

Henein asked Astravas if she is aware of any communications within government about the timing of the case.

« Do you recall having any communications about delaying this trial or about the timing of this trial? » she asked.

« I don’t remember, » Astravas replied.

‘Fishing expedition’

On Tuesday, the defence team produced a list of words used in documentation to refer to Norman that it had obtained through Access to Information. They include Kracken, MN3, C34 and The Boss.

Vance said the military routinely uses jargon, acronyms and pseudonyms and he didn’t see anything on the list that he thought would qualify as a ‘codename’.

The list released to the defence team through the access request did not include any terms used in Sajjan’s office, which claimed a ministerial exemption from the request.

Astravas said after she received a subpoena to appear in court late Wednesday, she asked her staff to make « best efforts » to check if other pseudonyms for Norman had been used. She said they did not come up with additional terms.

Henein asked if Astravas knew of the terms « the certain naval officer, » « a certain naval fellow » or a « a naval colleague » being used, but Astravas said she could not recall.

Norman’s defence team has been engaged in legal wrangling with government lawyers over the the release of documents deemed relevant to the case.

Henein described the situation as « quite extraordinary, » with the government asserting cabinet confidence over certain documents and the defence securing subpoenas to obtain those documents.

Crown lawyer Barbara Mercier suggested the defence is trying to prolong the process to « kingdom come. »

« I have a very strong feeling that this has been a very large fishing expedition, » she said.

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Judge tosses Brampton drug case, slams Crown ‘negligence’ for disclosing ‘mountain’ of evidence on eve of trial

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Another drug case tossed due to delay at the Brampton courthouse, another judge calling out the federal prosecution service for failing to provide timely disclosure of evidence to the defence.

Superior Court Justice David E. Harris went as far as describing what happened in a drug importation case as “Crown negligence,” according to a ruling released on Christmas Eve. He stayed the case against Chanelle Belle, who had been charged in October 2016 with importing seven kilograms of cocaine through Pearson International Airport and was originally supposed to face a trial last June.

“On the eve of trial in Superior Court, the Crown disclosed a mountain of information extracted from the applicant’s cellphone, 12,000 pages in all,” Harris wrote. “This could have and should have been provided many months before. No explanation of any kind has been provided. Nor is any extenuating circumstance imaginable.”

As a result of the late disclosure, the trial was rescheduled for February 2019 — which would have marked 28 months since Belle’s arrest. A landmark Supreme Court of Canada ruling known as R v. Jordan set strict timelines to bring accused persons to trial; in Superior Court, that limit is 30 months between a person’s arrest and the anticipated conclusion of their trial. If the ceiling is breached, the case must be tossed unless the Crown can prove there were exceptional circumstances for the delay.

However, the Supreme Court left the door open for cases to also be tossed if they fell below the ceiling but met certain criteria. Harris concluded this was one of those rare cases.

As the Star reported last April, a number of Brampton judges have been criticizing the Public Prosecution Service of Canada, the federal agency that handles drug crimes, for disclosure failures leading to cases being stayed for delay.

In one case last year, Brampton judge Paul O’Marra said he was “joining that chorus of condemnation” of the PPSC’s disclosure problems by other judges at the courthouse when he tossed a man’s heroin-related charges.

“The period of time that it took to provide disclosure to counsel in this case was unacceptable,” he said.

Judges at the Brampton courthouse tossed three drug cases, including the Belle case, due to delay in 2018, down from six cases tossed in 2017, according to the PPSC. The number of cases in which prosecutors themselves entered a stay in a case affected by delay, meaning they chose not to proceed with the case, was two last year, down from six in 2017.

“The PPSC remains dedicated to ensuring that disclosure is collected and presented in a timely fashion and consistent with the timelines set by the recent jurisprudence,” PPSC spokeswoman Nathalie Houle told the Star.

The Brampton courthouse is typically recognized as one of the busiest in the country. Harris noted in his Dec. 24 ruling that importation cases are a “staple in this courthouse” because it has jurisdiction over crimes committed at Pearson airport in nearby Mississauga.

While Belle’s cellphone was seized on the day of her arrest in October 2016, a warrant to search it was only sought in June 2017, according to judge Harris’ ruling.

“There was no explanation given for this nine-month lapse,” Harris wrote. He said the defence was then only made aware of the extraction of the phone’s contents nearly a year later, in May 2018, two weeks before Belle’s trial was originally set to begin.

The judge found the case was not complex and that the Crown had not proceeded expeditiously, factors that weighed in favour of tossing the case even though it fell below the 30-month time limit.

“A warrant for extraction is easily obtained. Why it took nine months just to get the warrant in this case is disconcerting,” he said. “But not disclosing the existence of the cellphone extraction until the eve of trial over a year and a half later after the seizure, and the actual contents until even later, is obviously unacceptable.”

Calling the delay in the case “egregious,” Belle’s lawyer, Chris Rudnicki, also acknowledged that it’s rare for a case below the time limit set by the Supreme Court to be stayed.

“They didn’t say anything about it, probably because there was no explanation for it,” he said of the Crown’s disclosure delay.

Harris also concluded that while the defence could have asked for an earlier second trial date or complained about delay in the case when the first trial date was no longer possible, the defence had also taken meaningful steps to move the case along. This is also important criteria to meet if a case that falls below the 30-month limit is to be tossed.

“It is ultimately the Crown’s obligation to bring the accused to trial,” Harris said. “The defence were not dragging their feet or frustrating the Crown’s efforts … The Crown caused the markedly excessive delay and then, having an opportunity to rectify their error, failed to act.”

Jacques Gallant is a Toronto-based reporter covering legal affairs. Follow him on Twitter: @JacquesGallant

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Police searching for woman, child after finding evidence of childbirth in Mississauga park

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Peel Police are searching for a woman and a child they believe could be in need of medical help after they discovered blood and signs of childbirth in a public park in Mississauga.

Police arrived at Sugar Maple Woods Park shortly before 9 p.m. on Monday after receiving a call regarding suspicious circumstances. At the scene, they found blood, forceps, and more evidence that could indicate that someone had given birth in the park before leaving.

Investigators are asking for anyone with information on the mother and child to police at 905-453-2121 ext. 1133.

Alexandra Jones is a breaking news reporter, working out of the Star’s radio room in Toronto. Follow her on Twitter: @AlexandraMaeJ

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Attempt to appeal ’60s Scoop settlement tossed for ‘extreme’ lack of evidence

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A last-ditch effort to challenge the court-approved settlement of the ’60s Scoop class action failed Friday when a judge tossed the novel attempt as lacking any substance.

In his decision, Judge John Laskin of the Federal Court of Appeal said the applicants had provided no support for their highly unusual motion seeking leave to appeal the settlement.

« The evidence filed by the applicants is inadequate in the extreme, » Laskin wrote.

The ruling, barring any further court machinations, paves the way for implementation of the $750-million class-action settlement. The federal government had said it could not proceed with payouts to victims pending finality in the court proceedings.

The request to appeal the agreement finalized over the summer rather than opt out — fewer than a dozen class members did so — came from a group of 11 claimants who said they were Scoop victims, although two of the plaintiffs subsequently dropped out of the proceeding.

They filed their application through a law firm that had been shut out of the $75 million in legal fees agreed to as part of the class-action settlement.

Among other things, they alleged they were excluded from the process that led to court approval of the agreement that would pay survivors as much as $50,000 a piece for the harms done when they, as children, were taken from their Indigenous families and placed with non-Indigenous ones. They also expressed unhappiness over the fees awarded to the lawyers who negotiated the deal.

Laskin noted the applicants had failed to show they were survivors of the ’60s Scoop and therefore members of the class. Nor did they provide evidence that an appeal of the settlement would be in the best interests of survivors, he said.

Seeking legal costs

One of the applicants, Joan Frame, of Hamilton, had alleged to The Canadian Press that the lawyers who negotiated the settlement — some of whom worked on the case for free for the better part of a decade — « resorted to trickery » to get the agreement.

« To allow people to win illegally and make money off our backs and suffering again should not be allowed to happen, » Frame had said.

Laskin also took issue with such assertions, saying the applicants had offered no evidence in support.

While it is normal in litigation for the losing party to be on the hook for the legal costs incurred by the winners, the winning lawyers are seeking costs personally from the lawyer who filed the appeal motion given the serious misconduct allegations he made against them.

Laskin declined to award costs until Jai Singh Sheikhupura with Vancouver-based Watson Goepel has had an opportunity to make submissions. He has until Nov. 19 to do so.

« We are pleased that the Federal Court of Appeal has cleared away the last impediment to the settlement being implemented, » said Kirk Baert, one of the lawyers involved in the class action. « Now the settlement funds can flow to the survivors as intended. »

The $75 million in legal fees, which the federal government agreed to pay to four legal firms separately from the compensation to the Scoop survivors, became a flashpoint earlier this year when Ontario Superior Court of Justice Edward Belobaba said they were far too high.

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Judge rules there’s no evidence Your Ward News publisher threatened political strategists with death

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A Toronto judge has discharged one of two men charged with uttering death threats against political consultants Warren and Lisa Kinsella.

Ontario Court Justice Dan Moore agreed to a “directed verdict” request finding no evidence that LeRoy St. Germaine was guilty of the death-threat Criminal Code charge, defence lawyer Chris Murphy said Friday.

St. Germaine, 76, is publisher of Your Ward News, an east-end Toronto based newsletter criticized for being homophobic, anti-Semitic, racist and misogynist. His associate, James Sears, 55, a former doctor who had his licence revoked for sexual impropriety, is still facing the charge and is expected to making his closing submissions next week.

The pair were charged with threatening death in 2017 after the Kinsellas initiated a private prosecution over an article that appeared in the newsletter. The Crown has taken over the case. St. Germaine and Sears are also charged separately with wilful promotion of hatred against identifiable groups.

This week, Warren Kinsella testified a piece written by Sears called for the couple to be “bludgeoned to death,” prompting them to take security precautions.

“The hateful, threatening words couldn’t have (been) published by Sears without the support and involvement of St. Germaine,” he wrote in a direct Twitter message to the Star.

The couple is also concerned about the impact on the upcoming promoting hatred case.

“Does this mean, now, that the publisher of this neo-Nazi rag walks away from that, too? The judge’s ruling sets a very disturbing precedent, one that affects not just us, but persons of colour, women, as well as the Jewish, LGBTQ and Muslim communities.”

On Thursday, while waiting to see if the judge would grant his request to discharge St. Germaine, a woman spit in Murphy’s face as he sat in a Starbucks near the College Park courthouse.

He didn’t recognize her. But Murphy believes she lashed out because of the “emotional” court proceeding unfolding across the street — and the current political climate, noting the rash of pipe bombs sent to leading Democrats in the U.S. Murphy and another lawyer were appointed by the court to assist the defendants by cross-examining the complainants.

“There’s no middle ground,” Murphy said Friday. “If I’m the person who is supposed to be covering the middle ground, from a legal basis, and this happened to me, what chance is there for people who hold different political viewpoints to ever have a rational discussion.”

Murphy added that “obviously” he does not subscribe to the content of Your Ward News and that he took several days before agreeing to take on the case, realizing “it could just really damage my career in a sense I would be associated as a person who subscribes to these ideas.”

Neverthess, Murphy said he felt he had no choice.

“I would rather never do this job for another minute than to have turned it down because I was bullied ….”

Murphy told the store’s manager he didn’t want police called about the spitting assault.

“I’m assuming that this person who did this was, has been the subject of some kind of trauma or hate in her life. The last thing I want is for the police to go and charge her; that’s not going to solve any problem. It’s just going to make it worse, frankly, from my perspective.”

Betsy Powell is a Toronto-based reporter covering crime and courts. Follow her on Twitter: @powellbetsy

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