Jim Vibert Government offers excuses, not reasons

The premier says he can’t tell Nova Scotians how much the high-priced Toronto lawyers are costing them because the case is before the courts. The Justice Department, meanwhile, says Nova Scotians can’t see those same lawyers’ bills because legal fees are protected by solicitor-client privilege.

The problem isn’t that Premier Stephen Mcneil and his Justice Department have different explanations for withholding the same information. That’s a symptom. The problem is that neither has a valid reason for keeping Nova Scotians in the dark. Instead, and in both cases, they’re simply making excuses.

Why should Nova Scotian taxpayers care? For starters, it’s their money footing those hefty legal bills, and accounting for how it spends taxpayers’ money goes to the very heart of responsible government. If the government isn’t responsible, it must be the opposite.

The government hired the Toronto-based lawyers to try to keep other secrets from Nova Scotians – secrets that the province’s highest court says it can’t keep, while adding the intriguing suggestion that they are embarrassing to the government.

Those secrets are found in communications between the government and former Justice

Department lawyer Alex Cameron, who is suing the province, the premier and others for defamation, constructive dismissal and assorted additional injuries and injustices.

Cameron was the Justice Department lawyer who defended the province against a challenge that it didn’t adequately consult the Sipekne’katik Mi’kmaq over the Alton Gas project near the Shubenacadie River. Among his arguments, Cameron included a brief that maintains the province has no duty to consult because the Mi’kmaq submitted to the Crown about 250 years ago.

The notorious so-called “conquered peoples” argument created outrage in the Mi’kmaq community and led Premier Mcneil to disavow all knowledge of the offending argument.

In effect, the premier claimed Cameron went rogue; that the government did not consent to the offending argument, nor did it have prior knowledge that Cameron would advance it.

Cameron, who resigned in the wake of the controversy, wants the internal documents released so he can pursue his suit against the province. That suggests that the premier’s disavowal may not be supported by those documents.

The province claims solicitorclient privilege protects those communications, but Nova Scotia’s Supreme Court, in a decision upheld by the Court of Appeal, said the province waived solicitor-client privilege when it threw Cameron under the bus.

“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,” said the Appeal Court in a unanimous decision.

When Nova Scotia’s top court didn’t give the government the answer it wanted, it appealed to the Supreme Court of Canada. The Toronto firm, Lenczner Slaght, is supplying the legal clout and it’s their fees the province won’t divulge.

Last week, the premier trotted out the old, shopworn bromide that the case is before the courts, so he can’t discuss it, including its cost to taxpayers.

As Dalhousie law professor Wayne Mackay told the Herald’s Andrew Rankin, the premier’s explanation doesn’t hold water, although Mackay used different words.

The general rule governing matters before the courts, Mackay explained, is that the substance of the issues before the court should be avoided. The rule doesn’t apply to incidental matters like how much the lawyers are getting paid.

In other words, the premier’s assertion that he can’t reveal the legal fees because the matter is before the courts is not a valid reason, but merely an excuse.

The Justice Department’s refusal to divulge the fees by claiming solicitor-client privilege is equally spurious.

The province’s Freedom of Information (FOI) Act permits the protection of information covered by solicitor-client privilege, but the government can waive that privilege at any time. In fact, the FOI Act says the province “may” withhold such information. It is under no obligation to do so.

So, the department’s refusal based on the FOI Act is not a valid reason, but just another excuse.

The Nova Scotia government – politicians and bureaucrats alike – disrespect the spirit of Nova Scotia’s admittedly-flawed FOI Act. The spirit of the Act is that all government-held information is by definition public information, with certain limited exemptions that are to be applied sparingly.

But civil servants, either by custom or by political direction, mine the Act for exemptions, and then weaponizes those exemptions to keep public information private.

The purposes of the FOI Act – as cited in the Act itself - include ensuring the government is “fully accountable to the public,” and ensuring fairness in government decision-making.

The secrets the government is so determined to keep in the Cameron case need to be public so Nova Scotians can determine whether the province is acting fairly in that matter.

The lawyers’ fees associated with the case should be made public because the Mcneil government incurred those costs at its own discretion and, it seems, in an effort to avoid embarrassment. Keeping them secret is the antithesis of being “fully accountable to the public.”

Nova Scotia’s Liberal government has no valid reason for withholding either the documents in the Cameron case or the associated lawyers’ fees. It just has excuses.

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 those in power.