A Supreme Court of Canada decision could affect whether government lawyers can use confidential documents to defend their reputations if political bosses “throw them under the bus,” a law professor says.
The top court is to rule Thursday on whether it will hear an appeal of a case involving Alex Cameron, a former lawyer with the Nova Scotia Department of Justice seeking to sue Premier Stephen McNeil and the former justice minister for defamation.
Cameron has claimed the politicians libelled him by implying he acted without instruction in 2016 when he argued in court that the province didn’t have a legal duty to consult the Sipekne’katik band on a natural gas storage proposal.
The brief was denounced by Indigenous leaders for stating there was historical evidence of the band’s “submission” to the British Crown in 1760, in contrast to “unconquered peoples” in other treaties.
Cameron resigned in 2017 from his position at the Justice Department, where he’d been a key lawyer on Indigenous cases.
Andrew Flavelle Martin, an assistant law professor at Dalhousie University, said the case has implications for lawyers representing government.
“I think for government lawyers generally it’s very important … that politicians have to be very careful about essentially throwing their lawyers under the bus when it’s convenient,” Martin said.
“I think depending on what happens in this case, it’s going to send a very important message to government lawyers and to politicians.”
If the Supreme Court decides to hear the Nova Scotia’s government’s appeal, the judges could set a precedent on whether client-solicitor privilege applies in these kinds of cases.
However, if the top court declines to hear the appeal, it will mean Cameron can proceed with his libel lawsuit, which is expected to include documents revealing what instructions he received.
Cameron’s original July 2016 brief was part of the government’s defence when the Sipekne’katik band sought to stay the provincial approval of a plan by Alton Gas to store natural gas in salt caverns near the Shubenacadie River.
Legal experts have called Cameron’s argument controversial, as the Supreme Court of Canada has already made clear the Crown generally has a duty to consult Indigenous peoples.
However, Martin says the issue shifted when political leaders publicly disavowed Cameron’s legal brief, and it now raises the question of ministerial responsibility for positions they’re supposed to oversee.
Cameron has won a series of court victories as he attempted to have solicitor-client privilege set aside so he could submit a libel suit. However, the documents have remained under wraps as the appeal continued, effectively preventing Cameron from proceeding with his case.
Justice John Murphy ruled in Cameron’s favour in October 2017 in Nova Scotia Supreme Court, saying the politicians’ statements “clearly imply” Cameron acted without instructions or contrary to instructions.
The judge concluded, “the statements nullified confidentiality and ended the privilege which otherwise applied.” His decision was upheld in the Court of Appeal.
Bruce Outhouse, Cameron’s lawyer, said in a recent interview that if the Supreme Court of Canada denies leave to appeal, “then the information will become public, and Mr. Cameron will file a (libel) action in the usual way, and it will proceed in that fashion in the public domain.”
According to court documents submitted by Cameron, McNeil and former justice minister Dianne Whalen made comments to the media on Nov. 17, 2017 that suggested Cameron had made the arguments without their input.
The premier told reporters in a media scrum that Cameron’s brief was “not what I believe,” and “I had no idea it was being put forward,” according to the court documents. Whalen added: “I can reiterate what the premier said. (It) went beyond the position of government.”
Martin said there are typically required approvals for civil case lawyers like Cameron to follow when they act for government. “From my experience in government, there are a number of layers of approvals that are necessary on a regular basis,” he said.
Eric Boucher, a member of the executive of the Canadian Association of Crown Counsel, said in an email that government lawyers take the duty of client-solicitor privilege very seriously, and Cameron’s case is unusual.
“I think the real concern here is if it were revealed that the government in this case was indeed aware of the arguments Mr. Cameron was going to make in court, but having been caught off guard by an unanticipated public backlash, decided to deflect attention away from its own responsibility by making disparaging comments about its lawyer,” he wrote.
“Crown counsel strive every day to protect our respective provinces’ and country’s interests while trying to uphold the rule of law. It’s a difficult job and it would be very disheartening to learn that we couldn’t expect our employers’ support in return.”
This report by The Canadian Press was first published Feb. 19, 2020.