Court Rdminietaton 2017 Ye sep 20 1007 Halifon NS. ‘SUPREME COURT OF NOVA SCOTIA BETWEEN ALEX M, CAMERON Applicant sand - ‘THE ATTORNEY GENERAL OF NOVA SCOTIA, representing Her Majesty the Queen in Right ofthe Province of Nova Scotia, ‘STEPHEN McNEIL and DIANA WHALEN. Respondents, AFFIDAVIT OF ALEX :AMERON |. Alex M. Cameron, make oath and say as follows: 1. am the Applicant in this proceeding, 2. _ [have personal knowledge of the evidence swomn to in this affidavit, except where ‘otherwise stated to be based on information and belief, 3. _ I state, inthis affidavit, the source of any information that is not based on my own personal knowledge, and | state my belief of the source. ‘4. I contin that, where my beliefs based on a source other than my personal knowledge, | do verily believe the source ‘5. For approxmately 26 years, until April 30, 2017, | was a lawyer employed by the Province of Nova Scotia (the "Province’).| worked in the Department of Justice and ‘conducted civil tigation on the Province’s behaif. In or about 2001 and again in 2006, | ‘was appointed as a prosecutor under the Public Prosecution Act, SNS 1990, c. 20 6. _ I retired from my employment at the Department of Justice on or about April 30, 2017 for the reasons that are detailed hereafter. HiNo. 4684377. Incr about 2001, | was asked by the Nova Scotia Public Prosecution Service to hhave carriage of the appeals in an aboriginal rights test case known as Rv Stephen ‘Marshall, which appeals were heard in the Summary Conviction Appeal Court, the Nova ‘Scotia Court of Appeal, and the Supreme Court of Canada. Subsequently, in ‘consequence of my involvement in that case, | was generally charged with the conduct ‘of civil cases involving aboriginal rights on behalf of the Province, ‘8. _ Inthe spring of 2016, | took carriage ofa statutory appeal under s. 138 of the Environment Act, SNS 1984-95, c.1, headed “Sipekne'kalk v. Nova Scatia (Min. of Environment) and Alton Natural Gas Storage LP", Hix No. 450765 (the “Alton Appeal’), ‘challenging a decision of the Minister of the Environment which raised constitutional issues of aboriginal law. 8. On May 30, 2016, at a Motion for Directions before Justice Glen G. McDougall, the Alton Appeal was scheduled for hearing on August 17 and 18, 2016, with a preliminary stay moton scheduled for June 22, 2016. Justice McDougall also directed that the appellan: file its brief in the appeal by July 15, 2018 and that the Crown's brief be fled by July 29, 2016, 10._On June 20, 2016, | sent an email to Tily Pillay, then Acting Deputy Minister of Justice for Nova Scotia, to advise her of considerations that | thought might be relevant ‘to her in terms of seeking instructions respecting the August hearing | pointed out that counsel for the Department of the Environment invariably sought to uphold the Minister's decision and I noted that the involvement of the Nova Scotia Office of “Aboriginal Affaics ("OAA") was critical because they took the lead in consultations with ‘the Sipetne’katik band. | further noted that “consultation involves constitutional issues and legal issues in respect of which the Attomey General has the final authority as the chief law officer ofthe crown’, 11. Ms, Play responded to my email the same day and advised that she would speak ‘with Julie Towers, who at the time was the Chief Executive Officer of OAA, and give me “collective instructions” for the August hearing. Annexed hereto as Exhibit 1 is a true copy of fiat email exchange, 42. OnJune 22, 2016, | emailed Ms. Pillay to note that | hoped, *...that we are not restrained in our submissions on Treaty righ, ile, etc in respect of the hearing August. | think, on this issue, that we need to think in the province's long term interests, ‘and coneeding or not advancing certain issues would not be to the province's advantage. 13. Ms, Pillay replied the following day, June 23, 2016 to advise that: *... | hear you, | will set up a meeting with Julle, you and Ito discuss strategy for the August hearing.” ‘Annexed hereto as Exhibit 2is a true copy of that email exchange.44. On Tuesday, July 8, 2016, | was copied on an email from Ms. Pillay to Julie Towers, which reads as follows: “Hi Julie: Alex and | have been discussing arguments/submissions on behalf of government forthe hearing in August. | thought it might be helpful for us to meet with Alex and clatify his instructions. | will have my assistant, Brenda, reach out to your office to set up a suitable time for you to meet with us. Thanks!" Annexed hereto as Exhibit 3 is a true copy of said email 18. Ms. Pillay’s assistant, Brenda Campion, wrote on July 13, 2016, to propose a meetng date of July 28, 2016. Since the Province's written submission was due to be fled withthe court on July 29, 2016, | did not consider that a meeting on the 28th would give me sufficient time to incorporate my instructions in a brief. Accordingly, | wrote to Ms. Campion to request an earlier meeting time, and she advised, “the 25th was the best! could do.” Accordingly, the meeting was scheduled for July 25, 2016, Annexed hereto as Exhibit 4 is a tue copy of my email exchange with Ms. Campion. 16. In June and early July, 2016, | had various interactions with Justin Huston, who Was at all material times the Executive Director of OAA, respecting the Province’s positon in the Alton Appeal, including a meeting in his office on July 18, 2016 to discuss evidence and arguments in respect ofthe Alton appeal. 47. On July 20, 2016, | received an email from Mr. Huston, asking that he and Ms, ‘Towers be provided with a copy of the Sipekne’katk brief for review in advance of the July 25 meeting.” | forwarded the brief to Mr. Huston, and he confirmed that he would ‘send it to Ms. Towers. A true copy of the relevant email exchanges are annexed hereto as Exhibit 5. 18. On July 25, 2016, | met in the offices of the Nova Scotia Department of Justice with Ms. Pillay, Ms. Towers and Mr. Huston to take their instructions respecting the arguments/submissions to be advanced in the Alton Appeal. At that meeting, | outlined the arguments, including an argument that, in light of historical evidence of a “submission” to the British Crown, there was no constitutional “duty to consult” the Sipekne’katk band (hereafter the “sovereignty” argument). At the conclusion of the meeting, twas my understanding that all were agreed to advance the arguments | ‘raised, including the sovereignty argument. 19. I drafted the Province’s Brief of Argument in the Alton Appeal (hereafter the "Brief" or 'Province's Brief’) over a period of weeks in July, 2016. In consequence of the collective instructions | received at the meeting on July 25, 2016 with Ms, Pilly, Ms. ‘Tower and Mr. Huston, | drafted the sovereignty argument, for inclusion in the Province's Brief, on July 27, 2016,20. I completed and fled the Province’s Brief of Argument in the Alton Appeal on July 29, 2016. I was informed by my then assistant, Erin Cox, and verily believe that copies ‘of the Brief were provided to the Province's solicitors for the Department of the Environment and the OA. Annexed hereto as Exhibit 6 is a true copy of an email dated August 2, 2016 from Ms. Cox forwarding copies of the Brief to the said solicitors. 21. On Wednesday, August 3, 2016, | received an email from Mr. Huston, a true copy of which is attached hereto as Exhibit 7, as follows: “Hi Alex. Just went through your brief and wanted to clarify a couple of points with you. No rush, but would be good before you are in cour.” 22. In response to Mr. Huston’s email of August 3, 2016, | discussed the Brief with him ina telephone conversation the folowing day. The “points” he raised did not relate in any way to the sovereignty argument 23. On August 15, 2016, the Nova Scotia Supreme Court adjourned the Alton Appeal and rescheduled the hearing for November 14 and 15, 2016. At no time in the intervening three months did anyone suggest to me that the arguments advanced in the Brief were improper, inappropriate, or inconsistent with the collective instructions | had received on July 25, 2016. 24. On November 9, 2016, an opposition member in the Nova Scotia House of ‘Assembly posed a question te the Premier respecting the Province's Brief inthe Aiton ‘Appeal. In doing so, she mischaracterized the sovereignty argument in the Brief as ‘suggesting that “the province only has a duty to consut ‘unconquered peoples”, and ‘she asked the Premier whether he identified the Sipekne'katik band as a "conquered people”. Annexed hereto as Exhibit 8 is a true copy of the Debates of the Nova Scotia House of Assembly, November 9, 2016 at pages 1370 and 1371, as taken from the Nova Scotia House of Assembly website. 25. On November 8, 2016, Ms. Pilay forwarded to me an internet posting by Naomi Metalic, Professor at the Schulich School of Law in Halifax, which stated: “Cameron shouldn't get away with taking the positions he does. His boss could reign him in. He has cited prosecutorial discretion before (ironically, since this arises in NS as a direct result of report into Donald Marshall's ‘wrongful conviction) but that’s a load of hogwash. He works on civil side of 1DO\, so there is no rhyme or reason for independence from his boss. He can't depend on that to shield his racist position (suggestion Mikmaq were a ‘conquered [si] is racist)” ‘Annexed hereto as Exhibit 9is a true copy ofthe intemet posting as forwarded to me by Ms. Pillay. Also annexed hereto as Exhibit 10 isa true copy of Ms. Play's email forwarding the same to me, and my response.1 | j 26. By this time, Ms. Pitlay was the Executive Director of Legal Services at the Nova ‘Scotia Department of Justice and Karen Hudson was the Deputy Minister of Justice 27. On Friday, November 11, 2016, Ms. Pillay forwarded to me a copy ofan online ‘media article, a true copy of which is annexed hereto as Exhibit 11. In her covering ‘email, 2 tue copy of which is atached as Exhibit 12, Ms. Pillay advised that ie publication of the article had caused provincial officials to organize a conference call to 'be held the following day. Ms Pilly also asked me to call her on receipt of her email 28. I subsequently spoke to Ms. Pillay that day. She advised me that she thought it ‘was likely that the sovereignty argument in the Alton Appeal would be abandoned, and ‘hat | would be “thrown under the bus”. 29. In consequence of my telephone call wth Ms. Pillay, ! sent an email, a true copy of ‘which is attached hereto as Exhibit 13, to Bemie Miler. ! wrote to Mr. Miller because | knew from previous dealings with him that he was a close advisor to government. 30._ | spoke to Mr Miler by telephone on Saturday, November 12, 2016, confirmed “tn him that twas not improper for me tobe contacting him, briefed him on the Sovereignty argument and agreed to let him know the outcome ofthe telephone conference scheduled for later that day. 31. On Saturday, November 12, 2016, | participated in a telephone conference with, ‘among others, Ms. Pillay, Ms. Hudson, Ms. Towers and Mr. Huston. During this telephone conference the question whether the sovereignty argument would be ‘advanced at the hearing beginning on Monday was discussed and debated. The decision at the conclusion ofthe telephone conference was that, subject to further instructions, | was to assume that | would advance the sovereignty argument. 32._During the course of the telephone conference, and in light of the comments in Exhibit 11 stating that, for example, ‘it's ike he's (Cameron) gunning for a fight’, | requested that govornment publicly clarify that the positions advanced in the Drief were those of the Province, and nol those of me personally 33. Subsequent to the telephone conference, Peter McLaughlin, Director of ‘Communications for the Nova Scotia Department of Justice, provided a draft of public “messages” respecting the Alton Appeal. The last ‘bullet of those messages was, intended to respond to my request, referenced above, that government publicly clarity that the positions advanced inthe Brief were those of the Province, and not my own. ‘Annexed hereto as Exhibit 14is a true copy of Mr. McLaughlin's email dated November 12, 2016. 34, Also subsequent to the telephone conference, | sent an email to Mr. Miller, a true ‘copy of which is annexed hereto as Exhibit 15,35. On Sunday, November 13, 2016, Ms. Towers responded to Mr. McLaughlin's email as follows: “delete the last bullet as this is about a provincial position - not any one. individual - we have to have a collective approach.” ‘Annexed hereto as Exhibit 16 is a true copy of said email 36._ I replied by email stating that, “itis precisely because this is about a provincial Position, and not about one individual, that you need to make that point." Annexed hnetelo ats Exhibil 17 is a ue copy of my eral, The last bullet was not, thereafter, to my knowledge, included in any public messages. 37. On Sunday evening, November 13, 2016, | received an email from Ms, Hudson, a true copy of which is attached hereto as Exhibit 18, advising that “the province will not advance a position that there is no duty to consult... The email was sent to Mr. Miller ‘among others, 38. Later that evening, | received two emails from Mr. Miler, true copies of which are attached hereto as Exhibits 19 and 20. The first advised that he "did not agree" with Ms. Hudson's email. The second advised that he had "spoken with Karen, Laura Lee, and Ryan’ and was ‘Working on clarifying instructions”. | understood that Mr. Miller's reference to Laura Lee was to Laura Lee Langley, Deputy Minister to the Premier. | understood that Mir. Miers reference to Ryan was to Ryan Grant, Deputy Chief of Staff tothe Premier. 38. Subsequently, that Sunday evening, | emailed Ms. Hudson to note that court began at 9:30 the following morning so that | needed instructions before then, Ms. Hudson replied, by email, that "Bemie will advise you" and that he would ‘advise you of any changes as soon as he can.” Annexed hereto as Exhibit 21 is a true copy ofthis, email exchange. 40. On Monday moming, November 14, 2016, before appearing in court, | received a telephone call from Mr. Miller providing me with instructions. Mr. Miller instructed me, when we spoke, that the sovereignty argument ‘should not be abandoned” and that | was free to advance the argument but that it was "subsidiary’. Mr. Miller advised me that the instructions were those of a “very tall gentleman” who | understood to be the Premier, 41. Mr. Miller also directed me to an email which he had sent ust prior to calling me but which | had not read before the call. The email, a true copy of which is attached as Exhibit 22 states in part “the Brief raises legal points regarding the nature and existence of the duty in the specific evidentiary basis of this case for this applicant. Ifthe court‘considers it necessary to assess this aspect, the position raised in the brief, may be advanced...” 42, In the following two days of hearing of the Alton Appeal, my instructions did not change. Accordingly, | advanced the sovereignty argument as instructed. In particular, with respect to the written instruction that “ifthe court considers it necessary... the position raised in the brief may be advanced’, | advised the court, in response to the Court's question, as follows: *..youll have seen the appendix to the factum with the historical document {from 1760, and my suggestion to the court wil be that that has potential implications forthe idea of duty to consult in Nova Scotia, At the same time, | willbe forcefully suggesting that you may not need to deal ‘with that because the overriding position of the Province in this case is that it has a policy to consult, it does consult and it consulted very deeply inthis, case, 50 any duty was acquitted on the facts of the case....” Annexed hereto as Exhibit 23 is a true copy of pages 60 and 61 of the transcript of the November 14 and 15 hearing, 43._ The sovereignty argument received controversial media coverage. For example, annexed hereto 2s Exhibit 24 is a true copy ofan article dated November 18, 2016 in the APTN News ented, “Mikmaq are a ‘conquered people’ says Nova Scotia government lawyer” 44._On Thursday, November 17, 2016, subsequent to a meeting of the provincial cabinet, Premier MacNeil made statements to the press, including the following “I believe that brief went beyond where we wanted to go." “Not what | believe or what my gov has done.” “1had no idea it was being put forward,” Annexed hereto as Exhibit 25 is a true copy of an email sent by Peter McLaughlin on November 17, 2016, which indicates the above statements were made in the "Premier's 45, On the same day, subsequent to the meeting of the provincial cabinet, the Nova ‘Scotia Minister of Justice, Diana Whalen, told the media that the Brief in the Alton ‘Appeal ‘went beyond the position of government’. Annexed hereto as Exhibit 26 is a ‘rue copy of an internal government record of “Minister Whalen scrum’ dated November 47, 2016 and prepared by Sarah Gills.46._| was extremely upset by this turn of events. On the aftemoon of Thursday, Novernber 17, 2016, spoke with Mr. Miller by telephone. He reassured me to the effect that the Premier was a reasonable guy, that he'd had a “bad week" and that Mr. Niller thought he would “come round” and recognize what he had done. 47. The Premier's statements on November 17, 2016 were widely reported in the media, For example, on Friday, November 18, 2016, the front page of Nova Scotia's, provincial newspaper, the Chronicle Herald, contained an article entitled ‘Legal Brief Went too far: McNeil’ in which the Premier is quoted as saying that "I believe that brief Went way beyond where it needed to go’. Annexed hereto as Exhibit 27 is a true copy of that article, Essentially the same article appeared online in Canada's National newspaper, the Globe and Mall. Annexed hereto as Exhibit 28 isa true copy of that article. 48._The same day, the Premier was quoted in the “APTN National News" (Exhibit 24 herein) as follows: “Ym not happy, not just as the minister, but as the premier thatthe position was put forward in the court... Disappointed would be a huge understatement. To say that | was furious would probably be more accurate, .My hope is that the chiefs and the Mi’kmaq community will understand itis not a reflection of who | am, and who our government is.” 49. On Friday, November 18, 2016, and subsequently, | received hate mail. A true copy of an email message | received on Friday November 18, 2016, is annexed hereto ‘as Exhibit 29. | forwarded a copy of this email to Ms. Langley that same day. 50, Also on that day, | sent a letter to Ms. Langley in her capacity as Clerk of the Executive Council complaining of the treatment I had received at the hands of ‘government over the preceding two days and demanded an apology. In particular, | Stated in the letter that*..public statements by the Premier and the Minister of Justice contain the strong insinuation that | have not carried out my instructions, or gone beyond the instructions I have been given.” No apology has ever been forthcoming, 51. On Saturday, November 19, 2016, | apoke to Mr. Miler by telephone. Mr. Milor suggested to me that government needed a "scapegoat" but that he didn't think it would be me. 52. On Monday, November 21, 2016, the Chronicle Herald published an editorial, a ‘rue copy of which is annexed hereto as Exhibit 30, ented, "A people unconquered” which states that, ‘Premier Stephen McNeil has wisely and assertively distanced himsetf from Mr. Cameron's arguments in the Alton Gas case.” 53. On Wednesday November 23, 2016, the Chronicle Herald published an article entitled, “Premier McNeil to apologize to Mikmaq for ‘conquered’ people brief", which