It was a sneak attack. That was the first sign Nova Scotia’s Liberal government was up to something underhanded.
Nova Scotia’s 100 Crown attorneys – a.k.a. Crown prosecutors – had been negotiating a new collective agreement with the province since April. The parties had been to conciliation, but agreement was elusive. The next step, entrenched in the Crowns’ agreement with the province, is arbitration.
But the McNeil government, which resembles nothing so much as a rather oafish bully when it comes to labour negotiations, is a one-trick pony. Without advance warning to the Crowns or the Director of Public Prosecutions (DPP), the government resorted to the blunt, brute force of a legislation.
A little recent history is helpful. In 2016, the Crowns accepted the McNeil government’s austerity-based wage package in return for the assurance that binding arbitration would resolve future contracts if the Crowns and the province were unable to arrive at a negotiated settlement.
But at the first opportunity, presented by the impasse in the current contract negotiation, the Liberal government brought in legislation that steals away the Crowns' right to arbitration. The bill was introduced last week and is expected to pass as early as this week.
In one fell – and foul – swoop, the McNeil government broke its word, betrayed Nova Scotia’s Crown prosecutors and, according to a legion of legal experts, introduced and is about to pass a law that couldn’t withstand a Charter challenge.
The government is blowing all kinds of smoke for political cover while, with unseemly haste, ramming though a law that raises serious questions as to whether the government can be trusted and whether its word is worth anything.
Martin Herschorn, who has been director of Nova Scotia’s public prosecution service (PPS) for 20 years, took the unprecedented step of appearing before the legislature’s Law Amendments Committee to condemn the bill, which he says spells disaster for the PPS and for the criminal justice system in the province.
With barely contained anger, Herschorn labelled the government’s defence of the legislation misleading and disingenuous.
The government claims that, while it is removing the Crowns' right to arbitration, it is granting them the right to strike so long as they maintain essential services.
An essential service is, among other things, one that protects the safety and security of the public.
That’s pretty much the job description of Nova Scotia’s Crown prosecutors, who are struggling now to stay on top of their caseloads by working untold hours of unpaid overtime.
Which criminal cases before Nova Scotia’s courts will be deemed non-essential, allowing the accused to walk? None.
Every Crown attorney provides an essential service, so the right to strike that the province is offering is purely illusory, a political chimera.
Respect for the law of the land demands that the government get a legal opinion as to the constitutionality of the legislation, but if the province has done that it isn’t willing to share it publicly.
The government knows and is relying on the fact that a Charter challenge would take years to wind through the courts and cost the Crowns hundreds of thousands of dollars.
Opposition members on the legislature’s law amendments committee attempted to send the bill back to the Justice Department for just such an opinion, but the government’s majority on the committee blocked them.
Among the various defences the government has trotted out for cover is the suggestion that any agreement the Crowns get through arbitration could set a pattern for other public sector agreements.
It is ludicrous to suggest a deal covering 100 lawyers would set the standard for 75,000 public servants, but the government hopes Nova Scotians are just gullible enough to swallow that bunk. Plus, an arbitrated settlement would be based on comparisons with Crown attorney salaries in other provinces, just as previous arbitrated settlements between the Crowns and the province have been. Such a settlement would be completely irrelevant to the rest of the public service.
The Crown Attorneys’ Labour Relations Act is bad law. It is underpinned by a lack of fairness to the Crowns and a lack of integrity and honesty by a government that didn’t keep its word of just three years ago.
The provincial government snuck the bill into the legislature and wants to ram it through before too many Nova Scotians notice. That’s understandable. Most anyone doing a dirty deed wants it done fast.