In fair­ness, prov­ince must ac­cept rul­ing

Truro Daily News - - OPINION - Jim Vib­ert Jim Vib­ert, a jour­nal­ist and writer for longer than he cares to ad­mit, con­sulted or worked for five Nova Sco­tia gov­ern­ments. He now keeps a close and crit­i­cal eye on provin­cial and re­gional pow­ers.

“It would be man­i­festly un­fair to al­low the Prov­ince to hide be­hind so­lic­i­tor-client priv­i­lege while at the same time im­pugn­ing the con­duct of its so­lic­i­tor.”

That does sound right. And, since it comes from the Nova Sco­tia Court of Ap­peal – the prov­ince’s high­est court – and con­firms the same rul­ing from the Nova Sco­tia Supreme Court, it’s safe to say the Mc­neil gov­ern­ment doesn’t have the law on its side.

Nova Sco­tians could get some idea in about 10 days whether a 26-year-vet­eran lawyer in the Jus­tice Depart­ment went rogue – as the gov­ern­ment claims – or acted with the knowl­edge and con­sent of his client, the provin­cial gov­ern­ment. If the lat­ter proves true, Premier Stephen Mc­neil has some ex­plain­ing to do.

The lawyer, Alex Cameron, wrote the in­fa­mous “con­quered peo­ple” brief which ar­gued that the Sipekne’katik Mi’kmaq “sub­mit­ted to the Crown” in 1760, negat­ing their claim to sovereignt­y and – 256 years later – re­liev­ing the prov­ince of the con­sti­tu­tional duty to con­sult the band.

The mat­ter at hand was the Al­ton Gas de­vel­op­ment near the Stewiacke and Shube­nacadie rivers. In 2016, Cameron was de­fend­ing provin­cial ap­proval of the project against a chal­lenge from the band, which claimed the prov­ince failed in its duty to con­sult.

Cameron in­cluded the con­tro­ver­sial ar­gu­ment in that de­fence, draw­ing an im­me­di­ate and an­gry re­buke from Mi’kmaq lead­ers.

Premier Stephen Mc­neil said at the time and has re­peated since that he was un­aware the gov­ern­ment’s lawyer was go­ing to present that ar­gu­ment, that it does not re­flect his gov­ern­ment’s po­si­tion, and as far as he knows no one in the gov­ern­ment in­structed Cameron to ad­vance it.

Cameron was re­moved from the case, the prov­ince with­drew the of­fend­ing ar­gu­ment and a year later the lawyer re­tired, but soon af­ter launched a suit against the premier, the at­tor­ney gen­eral and the prov­ince for defama­tion, abuse of pub­lic of­fice, con­struc­tive dis­missal and a vi­o­la­tion of his con­sti­tu­tional rights.

Cameron asked the Nova Sco­tia Supreme Court to de­ter­mine whether the in­struc­tions he re­ceived from the gov­ern­ment in the Al­ton Gas case were protected by so­lic­i­tor-client priv­i­lege and, if so, whether that priv­i­lege had been waived by gov­ern­ment. Those in­struc­tions are ob­vi­ously cru­cial to Cameron’s case against his for­mer em­ployer.

The Supreme Court found that while the com­mu­ni­ca­tions were cov­ered by so­lic­i­tor-client priv­i­lege, the prov­ince waived that priv­i­lege when the premier and at­tor­ney gen­eral (Diana Whe­lan) im­plied in pub­lic state­ments that Cameron acted with­out or contrary to in­struc­tions.

“In cir­cum­stances where a lawyer’s con­duct is called in ques­tion, the law al­lows the lawyer to de­fend him­self against at­tack upon his or her char­ac­ter and in­tegrity by per­mit­ting dis­clo­sure of con­fi­den­tial com­mu­ni­ca­tions from the client that are nec­es­sary to an­swer the al­le­ga­tions against him,” wrote Jus­tice John Mur­phy when he ren­dered the Supreme Court de­ci­sion a year ago.

The prov­ince ap­pealed, but the de­ci­sion was up­held unan­i­mously last week by a three-judge Court of Ap­peal panel.

Jus­tice Mur­phy’s orig­i­nal writ­ten de­ci­sion was heav­ily redacted to re­move the client-so­lic­i­tor com­mu­ni­ca­tions, but Jus­tice David Far­rar, who wrote the Court of Ap­peal de­ci­sion, or­dered that the Mur­phy de­ci­sion be re­leased, unredacted, on May 31.

If the com­mu­ni­ca­tions show the “gov­ern­ment” – se­nior of­fi­cials or politi­cians – knew Cameron in­tended to raise what the court calls the “Sovereignt­y Ar­gu­ment” and did not ob­ject, how does that square with the premier’s de­nial of prior knowl­edge?

The premier, who’s also the Min­is­ter of Abo­rig­i­nal Af­fairs, can still main­tain that he per­son­ally didn’t know Cameron was go­ing to use the of­fend­ing ar­gu­ment, but if Cameron re­ceived tacit or ex­plicit ap­proval for that ar­gu­ment from su­pe­ri­ors, the premier’s plea of ignorance be­comes an ad­mis­sion of gov­ern­ment in­com­pe­tence.

This wasn’t some ob­scure le­gal ar­gu­ment. A gov­ern­ment lawyer went to court and, in the name of the prov­ince, claimed that it has no duty to con­sult with the Mi’kmaq be­cause they, in ef­fect, sur­ren­dered their sovereignt­y. That ar­gu­ment runs contrary to the long-held po­si­tion of sev­eral provin­cial gov­ern­ments.

If a gov­ern­ment is func­tion­ing at all, that kind of thing doesn’t slide by un­no­ticed un­less, as the gov­ern­ment has sug­gested, Cameron went rogue and acted with­out or contrary to his client’s in­struc­tions. If that’s true, the com­mu­ni­ca­tions the gov­ern­ment is try­ing so hard to keep un­der wraps should con­firm it. Of course, the re­verse is also the case.

The prov­ince can still ap­peal to the Supreme Court of Canada. But two courts have al­ready told the gov­ern­ment that it can’t trash its lawyer, and then hide be­hind priv­i­lege when he seeks to de­fend him­self.

Fair­ness de­mands that the prov­ince ac­cept those rul­ings. An ap­peal to the SCOC at this point would look like the gov­ern­ment’s des­per­ately try­ing to hide some­thing, and it would look that way for good rea­son.

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