Skip to main content
The Globe and Mail
Support Quality Journalism
The Globe and Mail
First Access to Latest
Investment News
Collection of curated
e-books and guides
Inform your decisions via
Globe Investor Tools
Just$1.99
per week
for first 24 weeks

Enjoy unlimited digital access
Enjoy Unlimited Digital Access
Get full access to globeandmail.com
Just $1.99 per week for the first 24 weeks
Just $1.99 per week for the first 24 weeks
var select={root:".js-sub-pencil",control:".js-sub-pencil-control",open:"o-sub-pencil--open",closed:"o-sub-pencil--closed"},dom={},allowExpand=!0;function pencilInit(o){var e=arguments.length>1&&void 0!==arguments[1]&&arguments[1];select.root=o,dom.root=document.querySelector(select.root),dom.root&&(dom.control=document.querySelector(select.control),dom.control.addEventListener("click",onToggleClicked),setPanelState(e),window.addEventListener("scroll",onWindowScroll),dom.root.removeAttribute("hidden"))}function isPanelOpen(){return dom.root.classList.contains(select.open)}function setPanelState(o){dom.root.classList[o?"add":"remove"](select.open),dom.root.classList[o?"remove":"add"](select.closed),dom.control.setAttribute("aria-expanded",o)}function onToggleClicked(){var l=!isPanelOpen();setPanelState(l)}function onWindowScroll(){window.requestAnimationFrame(function() {var l=isPanelOpen(),n=0===(document.body.scrollTop||document.documentElement.scrollTop);n||l||!allowExpand?n&&l&&(allowExpand=!0,setPanelState(!1)):(allowExpand=!1,setPanelState(!0))});}pencilInit(".js-sub-pencil",!1); // via darwin-bg var slideIndex = 0; carousel(); function carousel() { var i; var x = document.getElementsByClassName("subs_valueprop"); for (i = 0; i < x.length; i++) { x[i].style.display = "none"; } slideIndex++; if (slideIndex> x.length) { slideIndex = 1; } x[slideIndex - 1].style.display = "block"; setTimeout(carousel, 2500); }

The Supreme Court of Canada, in Ottawa, on Jan. 19, 2018.

The Canadian Press

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.

Mr. 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.

Story continues below advertisement

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.

Mr. 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,” Prof. 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 Mr. Cameron can proceed with his libel lawsuit, which is expected to include documents revealing what instructions he received.

Story continues below advertisement

Mr. 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 Mr. 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, Prof. Martin says the issue shifted when political leaders publicly disavowed Mr. Cameron’s legal brief, and it now raises the question of ministerial responsibility for positions they’re supposed to oversee.

Mr. 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 Mr. Cameron from proceeding with his case.

Justice John Murphy ruled in Mr. Cameron’s favour in October, 2017, in Nova Scotia Supreme Court, saying the politicians’ statements “clearly imply” Mr. 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.

Story continues below advertisement

Bruce Outhouse, Mr. 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 Mr. Cameron, Mr. McNeil and former justice minister Dianne Whalen made comments to the media on Nov. 17, 2017, that suggested Mr. Cameron had made the arguments without their input.

The Premier told reporters in a media scrum that Mr. Cameron’s brief was “not what I believe,” and “I had no idea it was being put forward,” according to the court documents. Ms. Whalen added: “I can reiterate what the Premier said. [It] went beyond the position of government.”

Prof. Martin said there are typically required approvals for civil case lawyers such as Mr. 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 e-mail that government lawyers take the duty of client-solicitor privilege very seriously, and Mr. 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.

Story continues below advertisement

“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.”

Our Morning Update and Evening Update newsletters are written by Globe editors, giving you a concise summary of the day’s most important headlines. Sign up today.

Follow related topics

Report an error
Due to technical reasons, we have temporarily removed commenting from our articles. We hope to have this fixed soon. Thank you for your patience. If you are looking to give feedback on our new site, please send it along to feedback@globeandmail.com. If you want to write a letter to the editor, please forward to letters@globeandmail.com.

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff. Non-subscribers can read and sort comments but will not be able to engage with them in any way. Click here to subscribe.

If you would like to write a letter to the editor, please forward it to letters@globeandmail.com. Readers can also interact with The Globe on Facebook and Twitter .

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff. Non-subscribers can read and sort comments but will not be able to engage with them in any way. Click here to subscribe.

If you would like to write a letter to the editor, please forward it to letters@globeandmail.com. Readers can also interact with The Globe on Facebook and Twitter .

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff.

We aim to create a safe and valuable space for discussion and debate. That means:

  • Treat others as you wish to be treated
  • Criticize ideas, not people
  • Stay on topic
  • Avoid the use of toxic and offensive language
  • Flag bad behaviour

Comments that violate our community guidelines will be removed.

Read our community guidelines here

Discussion loading ...

To view this site properly, enable cookies in your browser. Read our privacy policy to learn more.
How to enable cookies