Equalization: Saskatchewan Party gov’t denies access to legal opinions on court challenge; on June 13, 2007, Brad Wall demanded they be released

“[T]he legal opinions must be available to members of the public who are following this important issue so there can be an open and informed public debate.”
– Saskatchewan Party Leader Brad Wall, June 13, 2007, New Release

“Saskatchewan people expect their government to be open, honest and accountable. A Saskatchewan Party Government will provide Saskatchewan people with more… transparency in Government.”
– Securing the Future, Saskatchewan Party 2007 Election Platform

“I’m not sure it would serve the province’s interest to disclose the opinions on either side of the issue, in the event that something similar is needed in the future to protect Saskatchewan’s interests.”
– Saskatchewan Party Premier Brad Wall, Regina Leader-Post, July 16, 2008

The Saskatchewan Party has flip-flopped again. This time the subject is legal opinions.

In a June 13, 2007, news release Opposition Leader Brad Wall said he supported in principle the NDP government’s decision to launch a legal challenge against the federal government on the basis that it is violating the constitution by failing to deliver a fair equalization deal to for the people of Saskatchewan.

Wall called on Premier Lorne Calvert to release copies of any legal opinions obtained by the government regarding a possible court challenge.

“The people of Saskatchewan must be assured that any challenge based on the Constitution Act has a reasonable expectation of success,” Wall said.

“To that end, the legal opinions must be available to members of the public who are following this important issue so there can be an open and informed public debate.”

Now that they’re in power the Wall government is refusing to release them.

An access to information request dated July 14, 2008, was submitted to the Ministry of Justice and Attorney General for “copies of any legal opinions prepared or obtained by the government since June 1, 2007 regarding the province’s equalization court challenge.”

In the ministry’s Aug. 12, 2008, response the deputy minister of justice, Doug Moen, said “Access to the records that meet the above description is declined pursuant to Section 22 of The Freedom of Information and Protection of Privacy Act. Section 22 provides:

“A head may refuse to give access to a record that:
(a) contains information that is subject to solicitor-client privilege;
(b) was prepared by or for an agent of the Attorney General for Saskatchewan or legal counsel for a government institution in relation to a matter involving the provision of advice or other services by the agent or legal counsel; or
(c) contains correspondence between an agent of the Attorney General for Saskatchewan or legal counsel for a government institution and any other person in relation to a matter involving the provision of advice or other services by the agent or legal counsel.

“These records contain information that is subject to solicitor-client privilege, were prepared in the manner referred to in clause (b) or contain correspondence of the type mentioned in clause (c).”

The ministry provided no other justification for denying the request.

The section of the Act cited by the government is a discretionary exemption meaning that the ministry is not required to withhold the information being requested. It could, if it so chose, disclose the information. The Wall government has instead opted for secrecy.

In the article Wall defends lawsuit decision (Leader-Post, July 16, 2008) Wall said the province hasn’t decided if it will make public the legal opinions on the province’s court challenge of equalization, in case the Sask. Party government decides to challenge other programs that federal governments may launch.

“I’m not sure it would serve the province’s interest to disclose the opinions on either side of the issue, in the event that something similar is needed in the future to protect Saskatchewan’s interests,” Wall said.

The Aug. 12 letter from Moen appears to suggest that the government has finally decided that it will not release the legal opinions.

On Aug. 19 the Leader-Post was made aware that a request for the legal opinions made under the Act was denied, but did not report it. It is interesting to note that at the time of the July 16 news story the Leader-Post had knowledge of the Saskatchewan Party’s June 13, 2007, news release, yet did not mention it in the article.

The following op-ed concerning equalization was published in the Saskatoon StarPhoenix on Aug. 22, 2008:

Wall betrays Sask. on equalization

Joe Kuchta
The StarPhoenix

Friday, August 22, 2008

Following is the personal viewpoint of the writer, a resident of Saskatoon.

With the withdrawal of a reference case to the Saskatchewan Court of Appeal on the equalization issue, Premier Brad Wall has set a new standard for hypocrisy and betrayal.

Justice Minister Don Morgan said the challenge had been hampering federal-provincial negotiations.

“The litigation is always the elephant in the room when you’re trying to negotiate something. So we’d just as soon try and not have that there at all,” Morgan said.

On the contrary, the real elephant in the room has been Conservative Prime Minister Stephen Harper, who asked Wall in January to drop the case. Morgan now would have people believe there’s no connection.

The minister fails to mention that on June 13, 2007, Wall expressed support in principle for the legal challenge, “on the basis that it is violating the constitution by failing to deliver a fair equalization deal to the people of Saskatchewan.”

Wall called on then-premier Lorne Calvert to release copies of any legal opinions regarding a possible court challenge.

“The people of Saskatchewan must be assured that any challenge based on the Constitution Act has a reasonable expectation of success,” Wall said.

“To that end, the legal opinions must be available to members of the public who are following this important issue so there can be an open and informed public debate.”

That debate never happened and, in a letter dated Aug. 12, the deputy minister of justice, Doug Moen, advised that access to the legal opinions through a request made under The Freedom of Information Act was denied. The reason: solicitor-client privilege.

On Oct. 4, 2007, Wall said: “If there’s a chance to win this case, we ought to pursue it.” Now he has arrogantly declared the equalization issue dead and said he’s not going to talk about it anymore.

In a Jan. 24, 2006, news release Wall said, “The importance of a fair equalization deal for Saskatchewan transcends provincial and federal politics and it needs to get done quickly.

“And I am committed to doing whatever it takes to make sure that happens.

“Regardless of who forms the federal government, the Saskatchewan Party will always fight for Saskatchewan interests. The commitments on equalization and agriculture must be kept by the new Parliament.”

On Oct. 10, 2007, the day the provincial election was called, Wall said he was extremely disappointed that the federal government had reached a deal to allow Nova Scotia to exempt all of that province’s oil revenues from equalization payments, while there is no similar deal for Saskatchewan.

“This is just plain wrong,” Wall said. “In order for Confederation to work properly, all provinces must be treated equally, and that’s not happening.”

Wall said if oil revenues are exempted for Atlantic provinces, the same deal must be extended to Saskatchewan.

“Over the next four weeks, I will be asking voters for a mandate to demand and negotiate a fair deal for the people of Saskatchewan,” he said.

After winning the election Wall’s promise to fight vanished.

He says Calvert was too confrontational in dealings with the Harper government on equalization, but told reporters on Nov. 28, 2005, that Calvert should be more aggressive with his tactics.

“Meet with them after a (media) scrum where the cameras are rolling or in a private room, whatever it takes to make the case,” Wall said.

“We gotta make the case a little more loudly than we have, and if that means getting in the face of federal politicians regardless of their party, then let’s do that.” When was the last time Wall got in Harper’s face? The answer is likely never.

The next day Wall told the CBC that he was voting for the Harper Conservatives in the Jan. 23, 2006, national election because it was the best way to advance Saskatchewan’s interests.

“You know, there are two parties that are interested in an energy accord, support an energy accord for Saskatchewan,” he said. “One of them has a chance to form the government and the other doesn’t.”

So, as it stands now, not only has the Harper government betrayed Saskatchewan but so has its premier. How much uglier can this get?

©The StarPhoenix (Saskatoon) 2008