What you need to know about the breach of trust charge against Marchk Norman

by Stuart Thomson (feat. Howard Anglin)

National Post
March 13, 2018

The saga of Mark Norman, the former vice-admiral who was relieved of his duties, has been mysterious from day one.

Initially, no explanation was given and speculation of spying or sexual misconduct filled the information vacuum. It eventually emerged that Norman’s misconduct centred around an alleged leak of classified information and, earlier this month, he was charged with “breach of trust by a public officer.”

The criminal code section that explains the charge is a short paragraph with a little more than 50 words, but it is broadly designed to ensure proper conduct from government officials. It has been applied to both Senator Mike Duffy in his headline grabbing criminal case, in which he was acquitted, and to a man who, in his government role, hired his own yacht for public purposes and cooked the books to hide it.

A 2006 Supreme Court case centring on s.122, the breach of trust charge, reviewed cases from Canada, Australia and Hong Kong as it grappled with the section’s wide scope and, in its decision, gave us a good idea of how the charge may apply to Norman.

What is s.122?Law professor Peter Sankoff described one purpose of s.122 as “a catch-all provision that is designed to ensure that government officials do not abuse their authority.” 

Anyone who followed the Mike Duffy case will probably have some vague memory of the “breach of trust” charges that were tacked on to all of the charges for expense fraud. That’s the second purpose of this section of the criminal code.

Criminal charges can be brought against any public official, but this extra charge makes it clear that breaching the trust of the office is especially bad. An example at the extreme end of criminality would be an official who is enriching himself at the expense of the taxpayers. 

Does it only come in to play for criminal acts? Not necessarily. Misconduct by a public official can also be a breach of trust, but the Supreme Court has set a higher bar for that. For example, an official using her government computer for personal use, or pilfering some printer paper, would likely face a reprimand but not a breach of trust charge.

In the recent Supreme Court case, a director of public security asked a police officer to write a “more complete” accident report for an accident involving his daughter. That second report allowed him to avoid paying a $250 deductible. 

The court agreed that the official was acting in his own interest — which probably warranted some kind of disciplinary action — but that it was an error in judgment that didn’t rise to the “level of seriousness” required for a breach of trust.

Importantly, the official didn’t ask the officer to skew his report in a favourable direction, but he did know that a more complete one would benefit him. The Supreme Court suggested that a better option would be to have the insurance company communicate directly with the officer but still held that it was not a breach of trust.

What does all this mean for Mark Norman? After the Supreme Court set its high bar, the tough task ahead for prosecutors is proving that Norman’s alleged misconduct was a “marked departure” from normal behaviour in his position. 

To paraphrase Martin Sheen’s character in Apocalypse Now!, a charge for leaking at the Department of Defence is like handing out speeding tickets at the Indy 500. 

“I sadly have to say that leaking had become very much — as counterintuitive as it sounds — the norm within many government departments, including DND,” said former Defence Minister Peter MacKay, who played a role in the supply ship procurement. 

The Supreme Court also made it clear that the Crown has to make the case that Norman was acting for “a dishonest, partial, corrupt or oppressive purpose.” 

With the caveat that we don’t know what kind of evidence the Crown has, Howard Anglin, a lawyer and former deputy chief of staff to Prime Minister Stephen Harper, said it’s hard to see a corrupt motive behind the alleged behaviour. 

The evidence, so far, seems to point to a man who was frustrated with what he saw as political interference in the procurement of badly needed supply ships for the Navy, and “he seemed to be doing it for the best of reasons,” said Anglin.

“Of all the leaks, from all the leakers in DND, that this one, against this man with his unimpeachable record … the fact that he’s been singled out seems unjust to me,” said Anglin. “Unless there’s some evidence that none of us has seen.”