A Canadian Forces member says his commanding officer appeared proud when he revealed last year that military officials had intentionally avoided using Vice-Admiral Mark Norman‘s name in internal correspondence.

The Forces member recounted the conversation in testimony Tuesday as Norman’s lawyers turned to witnesses and emails to hammer home their allegations that the government is trying to prevent a fair trial for their client.

The defence is alleging the government has been hiding or delaying the release of key documents, preventing access to witnesses and cherry-picking what information is made available to the court.

Government lawyers have denied the allegations.

The service member, who still works for the military and whose identify is protected by a publication ban, said he went to his commander in July 2017 for help with an access-to-information request for internal documents about Norman.

The request related to emails, reports, memos, text messages and other records from a two-week period around when Norman, who is facing one count of breach of trust, was suspended as the military’s second-in-command.

The service member, who testified that he doesn’t know Norman and only came forward because it seemed the right thing to do, said his commander smiled as he told him to tell the requester that there were no records.

“He gives me a smile and says … ‘Don’t worry, this isn’t our first rodeo. We made sure we never used his name. Send back nil return,”‘ the service member testified, later adding: “He seemed proud to provide that response.”

Under cross-examination, the service member said his commander left a few months later for medical reasons. Pressed by the Crown, the member said without offering details that he had noticed his commander “was becoming a bit mentally unstable.”

The service member also said that he had filed a formal complaint on Tuesday morning, but had only informally raised the issue with other senior officers in the intervening year because he wasn’t sure who he could trust.

Prior to cross-examination, Justice Heather Perkins-McVey described the member’s testimony as “very disturbing.”

The testimony came on the fifth day of a pre-trial hearing over the question of access to numerous government records, but which has increasingly turned toward whether the government has been putting up roadblocks to Norman’s defence.

Norman was suspended as the military’s second-in-command in January 2017 and charged this past March with one count of breach of trust for allegedly leaking government secrets about a $700-million military contract.

He has denied any wrongdoing.

The contract, in which a Quebec shipyard was asked to convert a civilian container ship into a support vessel for the navy, was negotiated by Stephen Harper’s Conservative government and finalized by Justin Trudeau’s Liberal government in 2015.

Norman’s team wants access to potentially thousands of government documents about the contract as well as records held by Trudeau’s office to prove their client was supporting the Tories in obtaining the ship before falling victim to Liberal political games.

After the service member testified, the court heard from former Privy Council Office analyst Melissa Burke, who attended various secret meetings about the project under both the Conservative and Liberal governments.

Burke told the court that she had specifically flagged to government lawyers last month that some notes that she had taken about one such meeting might be relevant to Norman’s case as they were different from a statement she had made to the RCMP.

Yet despite Burke’s efforts to flag the notes, government lawyers in a previous written response to the defence’s request for documents, had said there was “no explanation or evidentiary basis” for why the documents were relevant to the case.

It was only when Burke emailed Norman’s lawyers to ensure they received the notes, which related to an exchange between Norman and officials in Harper’s office in March 2015, that their potential relevance to the case became known to the defence.

“There had been no bona fide attempt (by the government) to produce all the relevant information,” defence lawyer Marie Henein told the court.

“But for (Burke) sending an email and then testifying what we would be left with is the Department of Justice’s position that there is no explanation or evidentiary basis for why records of such meetings are likely relevant.”

“Troubling,” Perkins-McVey replied. “Very troubling.”

Henein also produced a letter Harper sent to the clerk of the Privy Council, Michael Wernick, on Tuesday morning confirming that he would not block the release of any secret documents produced by his government that are deemed relevant to the case by the court.

Norman’s team and Perkins-McVey had asked government lawyer Robert MacKinnon several times over the past few days whether officials had asked Harper for his position on releasing the files after the former prime minister tweeted on the issue.

MacKinnon had repeatedly sidestepped the question, saying it was irrelevant since the government was leaving it up to the court to decide whether to release the files.

Henein said the fact that her office had to go out of its way to obtain the confirmation and e-mail – which she suggested should have been the responsibility of the Crown – was further proof of obfuscation.

Trudeau has so far remained silent on releasing documents produced under the Liberals.

Tuesday was to mark the end of the five-day pre-trial, but three more days have been added at the end of January.

Norman’s team plans to subpoena the service member’s commanding officer as well as defence chief Gen. Jonathan Vance and then-deputy defence minister John Forster to testify.

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