In fairness, province must accept ruling
“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.