Nova Scotia

Legal experts lambaste province for 'arbitrary ' Crown attorneys bill

Leading experts in labour law, constitutional law and even the director of the province’s Public Prosecution Service excoriated the Nova Scotia government on Friday for its plan to strip Crown attorneys of their right to binding arbitration and declare them an essential service.

Legislation that revokes right to arbitration is not constitutional, legal experts say

Martin Herschorn, the director of public prosecutions for the Public Prosecution Service, speaks at the legislature's law amendments committee as Crown attorneys sit in the background. (Michael Gorman/CBC)

Leading experts in labour law, constitutional law and even the director of the province's Public Prosecution Service excoriated the Nova Scotia government on Friday for its plan to strip Crown attorneys of their right to binding arbitration and declare them an essential service.

The government tabled Bill 203 earlier this week after failing to reach a contract agreement with the Crowns. The government has offered them a seven per cent wage increase over four years, while the Crowns want 17 per cent over four years.

The bill revokes the Crowns' right to binding arbitration, a right they agreed to extend in their last agreement in exchange for a smaller wage increase, and replaces it with the right to strike while also requiring Crowns be deemed an essential service.

In a legislature where it's become common practice in recent years to see people appearing before the law amendments committee to voice opposition to labour-related bills, it was the resumes and experience of witnesses on Friday that stood out.

"In all of my years of practice, I have never seen such arbitrary action done by a government, particularly in respect of the people who are on the front lines of the criminal courts and play a pivotal role in the administration of justice," said Paul Cavalluzzo, a labour and constitutional lawyer with more than 40 years experience who was speaking on behalf of the Nova Scotia Crown Attorneys' Association.

Paul Cavalluzzo, a labour and constitutional lawyer with more than 40 years experience, predicted at the law amendments committee that Bill 203 would not withstand a court challenge. (Craig Paisley/CBC)

Cavalluzzo noted that the Charter of Rights and Freedoms requires the government to introduce legislation that is charter compliant. He pulled no punches in his assessment of a bill he predicted would eventually be struck down in what would be a costly, protracted court challenge.

"I can't believe that any lawyer in this country that can spell the word 'charter' would find this law to be constitutional," he said.

Cavalluzzo said the bill is unconstitutional for a number of reasons, including that it came amidst contract negotiations and it came without notice to the other party. He said the proposed right to strike is an "illusion" and it rips up a previous agreement the government signed with the Crowns.

"Most Canadians believe that a deal is a deal," Cavalluzzo told the committee. "What is the point of making an agreement with the government that's not going to keep its word?"

Cavalluzzo said the government's view of collective bargaining "is that it's my way or the highway."

'This is disrespectful to my office'

Martin Herschorn, the province's director of public prosecutions, said Bill 203 would be "a disaster" for the criminal justice system and threatens the viability and sustainability of the province's Public Prosecution Service.

Herschorn said it is offensive that the government would violate a framework agreement it signed just a few years ago and he took personal issue with only learning of the plan around the time it was being tabled in Province House.

"I had no opportunity to voice my opinion, one that would have been based on 48 years of experience in the operation of a prosecution service," he told politicians. "This is disrespectful of my office."

For the government to suggest it is giving the Crowns the right to strike is "misleading and disingenuous," said Herschorn, because everything Crowns do is an essential service.

"They are what stands between the people of this province and murderers, child molesters and thieves," he said.

"Saying Crown attorneys have the right to strike is meaningless. A strike would bring mayhem to the courts. Public safety would be jeopardized. There's not one Crown attorney that wouldn't be considered essential."

'No political axe to grind'

Speaking to reporters following his testimony, Herschorn said he has the independence and responsibility to speak out and is not concerned about possible reprisal from the government.

"I am not a politician. I have no political axe to grind. I don't want to be interpreted as taking a political stance one way or the other," said Herschorn.

"I'm here to support the continued viability of a very important institution in the administration of criminal justice in Nova Scotia."

Premier Stephen McNeil has said throughout the week that the bill is necessary to preserve the government's finances now and into the future. Through successive contracts with unions, the government has established a wage pattern it believes is fair to workers while also taking into consideration the government's ability to pay.

As he has in the past, McNeil said he would not allow an "unelected, unaccountable third-party arbitrator" determine what the government can or cannot pay.

He said he's concerned a finding in favour of the Crowns would set a pattern that would cascade across the public service and cost hundreds of millions of dollars.

100 people can't set a pattern

But noted Halifax-based labour lawyer Raymond Larkin told the law amendments committee the premier's fear is mistaken and "inconceivable."

"No one would accept that 100 people should establish whatever the rates of pay are for 75,000 people," he told the committee, referring to the total size of the province's public service.

Further, the Crowns' salaries are set with an eye to comparability with colleagues in other provinces, said Larkin, and so has no bearing on other public sector workers.

Following witness presentations, Liberal MLAs on the committee used their majority to defeat an opposition motion that would have sent the bill back to the department to consider witness submissions and require a written opinion from the Justice Department on the constitutionality of the bill be presented to the committee.

The Liberals then used their majority to refer the legislation back to the House, where it could appear before the committee of the whole as early as Tuesday.

In response to a request from CBC News for a copy of the written legal opinion that Bill 203 is constitutional, a government spokesperson said in an email: "We are confident in the legislation and believe it is the best way forward."

About the Author

Michael Gorman is a reporter in Nova Scotia whose coverage areas include Province House, rural communities, and health care. Contact him with story ideas at michael.gorman@cbc.ca

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