P.B. v. Nova Scotia (Community Services), 2014 NSSC 82

IN THE SUPREME COURT OF NOVA SCOTIA Citation: P.B. v. Nova Scotia (Community Services), 2014 NSSC 82 Date: 2014 02 28 Docket: SFHCFSA-08645 Registry: Halifax Between: P.B. Applicant v. The Minister of Community Services and S.B. Respondents Judge: Leslie J. Dellapinna, J. Subject: Conflict of interest.

Summary: P.B. applied to the Supreme Court Family Division to terminate the orders that placed his two children in the Permanent Care and Custody of the Minister of Community Services. He applied pursuant to the Canadian Charter of Rights and Freedoms for state funding. The Attorney General opposed that application. P.B. objected to the Attorney General being represented by counsel employed within the Legal Services Division of the Department of Justice. The same department represented the Minister of Community Services. Issue: Did counsel for the Attorney General have a conflict of interest?

Result: No conflict of interest existed. Pursuant to the Public Service Act the Attorney General is responsible for all litigation for or against the Crown and any counsel, whether employed by the Department of Justice or “ outside counsel ” had to answer to the Attorney General. Further, by virtue of the Constitutional Questions Act the Attorney General was entitled as of right to appear and be heard in person or through counsel on any matter involving an application for a remedy under the Charter .

This information sheet does not form part of the court ’ s judgment. Quotes must be from the judgment, not this cover sheet. SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: P.B. v. Nova Scotia (Community Services), 2014 NSSC 82 Date: 2014 02 28 Docket: SFHCFSA-08645 Registry: Halifax Between: P.B. Applicant v. The Minister of Community Services and S.B. Respondents Judge: The Honourable Justice Leslie J. Dellapinna Heard: February 20, 2014, in Halifax, Nova Scotia Counsel: P.B., Self-represented Peter McVey counsel for the Attorney General for the Province of Nova Scotia

By the Court: [ 1 ] The Applicant, P.B., has applied to the Supreme Court of Nova Scotia (Family Division) to terminate the orders that placed his two children in the permanent care and custody of the Minister of Community Services. That Application was made pursuant to subsection 48(3) of the Children and Family Services Act, R . S.N.S. 1990 c. 5 . [ 2 ] P.B. attempted to obtain legal representation through Nova Scotia Legal Aid but his application was denied. [ 3 ] P.B. then applied to this Court for an order that he be provided state-funded counsel.

That application is in the form of an application pursuant to subsection 24(1) of the Canadian Charter of Rights and Freedoms ( The Constitution Act , 1982) which provides: 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [ 4 ] In his Application P.B. alleges that his right to security of the person which is protected by the Charter would be infringed if he is not granted state-funded representation. [ 5 ] P.B. ’ s application for state funding is contested by the Attorney General for the Province of Nova Scotia. [ 6 ] By way of a preliminary motion P.B. objected to the Attorney General being represented by Mr.

Anderson, Q.C. or by Mr. McVey or for that matter by any lawyer employed within the Department of Justice. It is his position that they are in a conflict of interest since they are employed in the same department as is counsel for the Minister of Community Services who will be opposing his application to terminate the Permanent Care Orders.

To paraphrase his position, it is his contention that counsel for the Attorney General is in a conflict of interest in that the Minister of Community Services has something to gain (by presumably having a greater chance of success in defending his application to terminate the Permanent Care Orders) if the Attorney General is successful in blocking his attempt to obtain state funded representation. P.B. asks that the Court find that Mr. McVey and Mr.

Anderson, Q.C. are in a conflict of interest, that they be removed as counsel and that the Attorney General be required to retain “ outside ” representation for the hearing to determine whether P.B. will receive state funding for his counsel. This decision relates solely to P.B. ’ s preliminary motion. [ 7 ] In support of his motion P.B. referred to the decision of R. v.

Doucet, 1993 Can LII 4412 , a decision of the Queen ’ s Bench of Manitoba. [ 8 ] Briefly the facts in that case were as follows; the Defendant was charged with three offences including rape and an allegation of unlawful sexual intercourse with a female person between the ages of 14 and 16 who I will refer to as the Complainant.

At the time of the alleged offences the Complainant was the step-daughter of the accused. [ 9 ] The Complainant brought a civil action against the government of Manitoba alleging that she had made complaints about the Defendant ’ s behaviour to a social worker employed by the government but that those complaints were ignored. Her action alleged that the social worker was negligent and the government of Manitoba was vicariously liable for the actions of the social worker.

[ 10 ] In the criminal proceedings against the Defendant the Crown was represented by counsel employed within the Department of Justice. In the civil action the Crown was also represented by counsel employed by the Department of Justice.

Counsel in the criminal proceedings worked for the Public Prosecutions Branch of the Department of Justice while counsel acting for the Crown in the civil case were employed by the Civil Legal Services Branch of the same department. [ 11 ] While the Court accepted that the Attorney General has a special role to play and that the Court should not interfere with the discretion that is granted the Attorney General and her agents, the Court put greater emphasize on the need to protect the public confidence in the administration of justice.

In other words while the Court did not doubt that the agents for the Attorney General would act in a “ just and proper manner ” there remained a public perception of unfairness. As Oliphant, A.C.J. stated: “I do not think it is sheer speculation to say that a certain segment of the discerning public would perceive an acquittal as meaning the Crown did not fully prosecute Mr. Doucet because of the damage an acquittal might do to the complainant’s civil suit naming the Crown (through the government of Manitoba) as a defendant.

In my view, another discerning segment of the public will view, in all of the circumstances here, the continued participation of an employee of the Department of Justice in prosecuting Mr. Doucet as unfair. Most assuredly, Mr. Doucet views it in that light for the reasons advanced by Mr. Menzies [his counsel] in his submission to the court.” [ 12 ] And further: “Once again we have an example which amply demonstrates that perception is all important. In the context of the matter before me, it is not enough that the Crown Attorney fully and fairly prosecutes the case against Mr.

Doucet; s/he must be seen to have done so at the end of the day. If, as I have concluded, a conflict exists, that is impossible.” [ 13 ] The learned Associate Chief Justice concluded that the appropriate remedy was to enter a judicial stay of proceedings against the Defendant until outside counsel could be retained to prosecute the case. [ 14 ] While this Court may be influenced by the Doucet decision, it is not bound by it. [ 15 ] It is the position of the Attorney General that no conflict exists. In his submissions Mr. McVey referred to, among other things, the Public Service Act R.S.N.S., 1989 c. 376.

That statute, among other things, defines the responsibilities of the office of the Attorney General in Nova Scotia. Amendments in 1993 abolished what was the office of the Solicitor General (who was responsible for policing and corrections), merging it with the Attorney General ’ s office (who was responsible for prosecutions) to form the Department of Justice. The head of the Department of Justice is the Minister of Justice and the Minister of Justice also holds the office of the Attorney General.

Section 29 of the Act describes the functions, powers and duties of the Attorney General and the Minister of Justice and reads as follows: Functions, powers and duties 29(1) The functions, powers and duties of the Attorney General and Minister of Justice shall be the following: (

a) the Attorney General is the law officer of the Crown , and the official legal adviser of the Lieutenant Governor, and the legal member of the Executive Council; (

b) the Minister of Justice shall see that the administration of public affairs is in accordance with the law, and has the superintendence of all matters connected with the administration of justice in the Province not within the jurisdiction of the Dominion of Canada ;

(​) the Attorney General shall advise the heads of the several departments upon all matters of law concerning such departments or arising in the administration thereof ; (

d) the Attorney General has the settlement and approval of all instruments issued under the Great Seal; (

e) the Attorney General has the regulation and conduct of all litigation for or against the Crown or any public department in respect of any subject within the authority or jurisdiction or the Government ; (

f) the Attorney General has the functions and powers that belong to the office of the Attorney General of England by law or usage so far as the same are applicable to this Province, and also the functions and powers that previous to the coming into force of the British North America Act , 1867 belonged to the office of the Attorney General in the Province and that under the provisions of that Act are within the scope of the powers of the Government of the Province, including responsibility for affairs and matters relating to courts and prosecutions; (

g) the Attorney General and Minister of Justice has such other powers and shall discharge such other duties as are conferred and imposed upon the Attorney General or Minister of Justice by any Act of the Legislature of the Province, or by order in council made under the authority of any such Act.[emphasis added] [ 16 ] Subsection 29(1)(

d) provides that the Attorney General is the law officer of the Crown. The Crown is the client of the Crown and therefore of any lawyer working on behalf of the Attorney General. [ 17 ] Subsection 29 (1)(

b) describes the role of the Minister of Justice while subsection 29 (1)( ​ ) describes the role of the Attorney General. [ 18 ] The Minister of Justice has a duty to see that the administration of public affairs is in accordance with the law. As Attorney General she is to advise the heads of the various government departments (which are listed in

section 2 of the Act) including, among others, the Department of Community Services and the Department of Justice. [ 19 ] The Attorney General/Minister of Justice is generally assisted and represented by lawyers employed by the Legal Services Division of the Department of Justice. [ 20 ] Subsection 29 (1)(

e) provides that the Attorney General has the regulation and conduct of all litigation for or against the Crown or any public department (which would include the Department of Community Services) in respect of any subject within the authority or jurisdiction of the Government of Nova Scotia. Again, in conducting that litigation the Attorney General is assisted by the lawyers in the Legal Services Division. Whether using those lawyers or, as proposed by P.B., “ outside counsel ” the Attorney General controls that litigation.

In other words, whether the lawyer representing the Attorney General is employed by the Legal Services Division or is in private practice that lawyer must answer to the Attorney General if the litigation involves the Crown. [ 21 ] The reason the Attorney General is involved in P.B. ’ s application for state funding can be found in the Constitutional Questions Act R.S.N.S., 1989 c. 89. Because his application takes the form of an application pursuant to subsection 24 (1) of the Canadian Charter of Rights and Freedoms the Constitutional Questions Act comes into play.

Subsection 10 (2) of the Act provides: (2) “Where, in a court in the Province, in a proceeding other than a proceeding where the Attorney General for the Province is a party, is represented by counsel or has appointed counsel, (

a) the constitutional validity or constitutional applicability of any law is brought into question; or (

b) an application is made to obtain a remedy,

the court shall not adjudge the law to be invalid or inapplicable nor shall it grant the remedy until after notice is served on the AttorneyGeneral in accordance with this Section. [22] And subsection 10 (7) provides: The Attorney General for the Province is entitled as of right to appear and be heard either in person or through counsel in anyaction, cause, matter or proceeding to which subsection (2) or (3) applies.[emphasis added] [23] Therefore, because a remedy is sought under the Charter the Attorney General must receive notice ofthe Application and is entitled “as of right to appear and be heard either in person or through counsel”. [24] The decision of Associate Chief Justice Oliphant of the Court of Queen’s Bench of Manitoba in Doucet,to which I referred to earlier, was appealed to the Manitoba Court of Appeal.

Its decision is found at R. v. W.R.D., (MB CA), [1994] M.J. 209. The Manitoba Court of Appeal allowed the appeal, finding that the Attorney General was not in a conflict. There was no solicitor-clientrelationship between the Attorney General and the Complainant. She was simply a witness in the criminal proceedings against theDefendant and an adverse party in the civil proceeding. While Doucet’s facts can be distinguished from the facts in this case thefollowing passage is helpful. At paragraph 13 the Court said: “The Attorney General is in a unique position, quite unlike that of a member of the private Bar.

She is responsible for the prosecution ofcriminal cases within this jurisdiction. She also represents the Government of Manitoba for forensic purposes in civil suits. It is noanswer, beyond political window dressing, to retain outside counsel. Whoever her agents may be, whether her permanent staff or outsideappointments, they must function under the Attorney General’s direction. And the Attorney General must be allowed to fulfill theresponsibilities of that office unless and until circumstances arise which would compel the Court to interrupt the fulfilment of thoseresponsibilities.

No such case has been made out.” [25] And further at paragraph 14, adopting a passage from the Appellant’s brief, the Court said: “...no apprehension of bias arises out of the multiple responsibilities of the Attorney General in the conduct of civil and criminallitigation. It is not enough to simply suggest that conflicting duties imposed by legislation will create a perception of bias.

There is apresumption that the Attorney General will carry out her duties in good faith which is supported by the common law, legislation, policyand constitutional convention...” [26] The Court of Appeal set aside the stay imposed by the trial judge and ordered that the prosecutionproceed without a change in counsel. [27] Again, while influential, this Court is not bound by the decision of the Manitoba Court of Appeal.However, that decision was appealed to the Supreme Court of Canada. Its decision in R. v. W.R.D., [1995] S.C.J. No. 25 is binding onthis Court.

The entire decision of Lamer C.J. is as follows: “This appeal comes to us as of right. In our opinion, the appellant has not established any conflict of interest or appearance thereof,which would affect his right to be prosecuted fairly. Accordingly the appeal is dismissed.” [emphasis added] [28] I have concluded therefore that because (

a) the Attorney General is the law officer of the Crown and isresponsible for all litigation involving the Crown; (

b) by statute the Attorney General is the one who advises the heads of all governmentdepartments; (​) the Attorney General is responsible for the conduct of all litigation for or against the Crown or any public department inrespect of any subject within the authority or jurisdiction of the Government; and (

d) the Attorney General is entitled as of right to appearand be heard in person or through counsel when a remedy is sought under the Charter, that counsel for the Attorney General is not inconflict as alleged by P.B.. They are acting within the authority of the Attorney General. Further, any public perception of unfairness toP.B. by the appearance of the Attorney General’s counsel would not be remedied by requiring the Attorney General to retain “outside”

counsel. Whoever represents the Attorney General must, by virtue of the Public Service Act , take instructions from the Attorney General. Therefore, P.B. has not satisfied me that any conflict exists by the Attorney General being represented by her current counsel and any perception of unfairness is trumped by legislation. I therefore dismiss P.B. ’ s preliminary Motion. J.