Bar association cautions N.S. premier on statement about court decision
The Canadian Bar Association is warning Nova Scotia's premier that recent comments from his office risk blurring the public's perception of "the important distinction" between the roles of elected politicians and the judiciary.
In a letter to Tim Houston dated July 29 and posted online, the president of the association's Nova Scotia branch writes that the Nova Scotia Court of Appeal's decision to decline to answer a reference question related to the Chignecto Isthmus was "based on established legal principles, not an avoidance of difficult questions."
"The courts have a fundamental responsibility to determine whether questions posed to them are appropriate for judicial determination," Abha Romkey writes.
"In doing so, they safeguard not only the integrity of the judicial process but also the essential separation of powers between courts and the other branches of government."
At the heart of the matter was a question of what level of government has legislative authority over the small strip of land that connects the province to New Brunswick.
The Nova Scotia government put the question to the court several years ago amidst a dispute with Ottawa over the responsibility for the cost of upgrading the Isthmus, which requires work to ensure future storms do not cut off the vital trade and transportation corridor, which includes the Trans-Canada Highway and a rail link.
The federal government offered to foot half of the $650-million bill, with the governments of Nova Scotia and New Brunswick splitting the other half, but the provinces maintained Ottawa should cover all costs of upgrading and strengthening dikes that protect the low-lying area. Ultimately, the provinces accepted the proposal but Nova Scotia pushed ahead with its court case.
Although lawyers for the Nova Scotia government said they were not looking for the court to determine who has the financial responsibility for the upgrades, Houston had stated publicly that the court case could help determine that question.
Concerns about political undertones
That drew concerns from the court, which issued a decision that called Nova Scotia's reference question "vague," "imprecise" and with "political undertones."
"The background leading up to the Question suggests it is an attempt to enlist the Court in a political dispute — that is — who is responsible to pay for the remediation of the Isthmus," the justices wrote in their decision.
"We recognize our obligation to provide advice when a reference is made to this Court, however, the Governor in Council should not be using the reference process for a political purpose. The reference process is not a mechanism for achieving political ends."
Houston's office responded with a statement that said the court should answer questions it's asked about interprovincial affairs. The statement went on to say that all constitutional questions of the court that cross federal and provincial jurisdictions have the potential for political overtones.
"This is not a legitimate reason to avoid answering an important, reasonable question," the statement from Houston said.
Public confidence in courts 'fundamental' to rule of law
In her letter to the premier, Romkey writes that although constitutional questions often have political dimensions, "it is both legitimate and necessary for courts to decline to answer where the question lacks sufficient legal substance or would risk drawing the judiciary into a political dispute."
"This ensures that rulings address genuine legal issues, not policy debates, preserving both judicial independence and public confidence in our courts."
Romkey, who notes in her letter that she represents more than 1,500 lawyers, judges, academics, students and notaries in Nova Scotia, concludes her letter by encouraging the premier's office "to consider clarifying that your comments were not intended to call into question the Court's independence or the legitimacy of its decision to decline the reference, as public confidence in our courts is fundamental to the rule of law."
In a statement, Houston's press secretary said the case deserved a clear resolution.
"In the past, courts have made clear decisions on issues like the legality of the federal government imposing a carbon tax on provinces," Catherine Klimek said.
"If Nova Scotians are to foot the bill for a national project, they should at least receive a clear court ruling assuring them that it is indeed their responsibility."
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