Premier Stephen McNeil was asked (again) yesterday when he would “make good” on his promise given July 25, 2019 to release the cost of hiring outside lawyers from Toronto to appeal the Nova Scotia top court’s decision to the Supreme Court of Canada in the “Conquered People’s” case.
Here is part of the audiotaped exchange between the premier and journalist Brian Flinn during a post-Cabinet meeting July 25, 2019:
Flinn: “The province is retaining outside legal counsel on this case. Have you been told how much this is costing?”
McNeil: “No. But I will get you the number, I will find that out and let you know.”
That was then; this is now. The Examiner reminded the premier of that promise yesterday. Here’s his response:
McNeil: “I always like to make good on my commitments and that’s why over the last six years the economy is doing so well. But as I have also told you, we’ve been served notice. So this is not finished in the courts. We expect to be back in court, we’ve served notice that’s where we’re going.”
Henderson: “But that’s a separate matter that has nothing to do with the case that finished. Surely you could give us the bill for a matter that is dead and buried.”
McNeil: “It’s not. That’s one aspect of this case. So we can agree to disagree.”
Henderson: “Mr. McNeil, you told us last July the case was about solicitor-client privilege, that’s over.”
At which point, the premier’s aide responsible for the scrum and telephone conference call said “good-bye” and shutdown my questioning.
And now for the back story which explains why the premier’s explanation does not hold water.
The Back story:
On February 20, 2020 the Supreme Court of Canada declined to hear the case brought by the McNeil government the premier described as “protecting lawyer-client privilege” so affidavits from former Nova Scotia Justice Department lawyer Alex Cameron and his supervisors and political bosses could be kept secret.
At issue was whether Cameron acted on his own or had authorization from the premier — who is also the Minister for Aboriginal Affairs— or from former Justice Minister Diana Whalen. Both the premier and Justice minister denied knowledge of the position Cameron took on behalf of the province during a judicial review of the Alton Gas Project on November 14, 2016, when Cameron argued the province did not have a duty to consult the Mi’kmaw First Nation because they were a “Conquered People.”
The premier apologized to the Mi’kmaw chiefs, saying the argument did not represent the government’s position.
Cameron then began the process of launching a lawsuit claiming the premier and Justice minister had defamed his reputation by telling the public he had gone off on his own or acted without proper authorization.
In response, the province argued because Cameron was the province’s lawyer, documents filed by the lawyer and government officials about “who knew what when” before the Alton review should be protected by privilege.
The Nova Scotia Court of Appeal disagreed, saying the province had already breached lawyer-client privilege when the premier and Justice minister told journalists Cameron had gone rogue.
We know now — since statements have recently been unsealed from Alex Cameron and Bernie Miller, the premier’s senior executive advisor in the Executive Council Office — that Miller did have a three-minute conversation with the premier about Cameron’s argument the same morning Cameron was due in court.
The emailed instructions to Cameron following that conversation with the premier appear somewhat contradictory.
The email from Miller to Cameron clearly states the province does recognize “a duty to consult” and “has consulted on this case.” The email then goes on to say “notwithstanding” those main points, if the court considers it necessary, “the position in the brief may be raised” related to specific evidence in this particular case. These emails could form part of the record in the defamation case Cameron has served notice he intends to pursue.
Cameron states in his affidavit at least two deputy ministers approved his brief filed several months before the “Conquered Peoples” case went to court. On the holiday weekend before the hearing, he says he checked in with the premier’s right-hand man (Miller) for reassurance the sovereignty argument was OK to advance. Miller states in his affidavit that at no time did he see or read the contents of Cameron’s brief, although he had several phone and email conversations with the lawyer.
When questioned in the Legislature on February 20, 2019, McNeil continued to deny he knew what Cameron was going to say in court. “The fact of the matter is that I will stand on my integrity,” McNeil replied to PC leader Tim Houston. “My word matters to me. There is no way I am going to go out and mislead the press or anyone in this House or quite frankly anyone on this file.”
Premier McNeil said a similar thing to journalists when he was reminded of what he had promised last July. Only this time he tried to confuse the issue by saying the matter “is still before the courts.” That’s a hollow argument. It’s now a different matter that’s before the courts: the question of reputation for both Cameron and the premier. The issue of using “lawyer-client” privilege to keep internal government communications a secret is finished, over. The Supreme Court of Canada declined to hear it. The bill for the legal costs, please, Mr. Premier. As you promised.