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Will Supreme Court hear N.S. government’s ‘unconquered people’ case? It’s no sure thing

CBC with Hilary Young 27 July 2019

Documents containing details that could be embarrassing to Nova Scotia Premier Stephen McNeil may be under wraps for now, but his government faces a tall order to have the Supreme Court of Canada keep them private indefinitely.

Last week, the government received a stay from Supreme Court Justice Russell Brown, meaning the documents will be kept out of public view until the top court decides whether it will hear the matter.

The order came on the eve of the release of documents related to any instructions the province gave to former Justice Department lawyer Alex Cameron.

Cameron worked on a file in which he argued the province’s duty to consult First Nations only applied to “unconquered people,” something he suggested in a brief in 2016 was not the case with the Sipekne’katik First Nation.

Cameron was removed from the file and subsequently retired, and is now suing the province, McNeil and former justice minister Diana Whalen for defamation, abuse of public office and constructive dismissal.

Cameron has argued internal government communications would show he was not acting on his own accord, as McNeil has previously suggested.

The province has countered that the documents should be shielded by solicitor-client privilege and remain sealed.

It’s a view Nova Scotia Appeal Court Justice Duncan Beveridge shot down when he ruled earlier this month there was nothing in the documents that would cause “irreparable harm” to the province, McNeil or Whalen. Beveridge said the only potential harm he saw was “embarrassment.”

That led the province to file its application for leave to the Supreme Court of Canada and, in the meantime, request the stay on the release of the information.

Statistics kept by the Supreme Court show that it takes an average of 3.9 months between the filing of an application and a decision on whether the matter will be heard.

The test of public importance

Hilary Young, an associate professor in the University of New Brunswick’s faculty of law, said statute dictates the powers of the Supreme Court, including the grounds for leave to appeal. The test comes down to whether a case raises a question of public importance.

“It’s pretty broad in that they have discretion to grant leave for any reason that they think makes a case sufficiently important, but really that language of public importance is what they’re going to be relying on,” Young said.

Eugene Meehan, an Ottawa lawyer specializing in Supreme Court matters and the former executive legal officer at the Supreme Court, said there are a number of factors that can improve the chances a case will be heard. They include the presence of a constitutional issue, a conflict between courts of appeal and a novel point of law.

“Where the case is more about the particular parties and the facts than the law generally, it is more challenging to get leave,” he said.

“The Supreme Court looks at the big picture and what the law should be. It’s not in the business of looking for and correcting trial errors.”

A fraction of applications are granted

But even fitting those guidelines is not a guarantee a party will get leave.

In the last decade, an average of 10 per cent of applications were granted leave. Meehan said the number represents “the practical realities that the court has a fixed number of judges and therefore finite resources.”

In his decision earlier this month, Beveridge called some of the province’s arguments for keeping the documents under wraps “spurious” and “hollow.” He wrote that he doubted the province “actually identified any issues of national or public importance for leave to appeal” to the Supreme Court of Canada. 

Now Cameron, the province and the public will wait to see if the Supreme Court of Canada will weigh in.