During the rest of the day, some real progress was made in arriving at such an agreement, but issues remained. Counsel agreed to request the assistance of the judge in seeing whether some of those issues could be resolved. The court agreed to meet with counsel (and I participated) in chambers. At the end of that meeting, it seemed that an agreement had been reached on most issues. Court again adjourned to allow the agreement to be finalized in writing.
At 3:00 p.m. on Tuesday, a teleconference between counsel and Justice Mactavish cleared up a few details and resulted in a Statement of Agreed Facts signed by counsel for both parties which, as I understand it, is to be filed with the court (and then be public). The issue of whether an agreement can be reached on the issue of advance costs (i.e. the current order that the AG pay for legal counsel for the plaintiff, an order that the AG's motion asks be rescinded or modified) remains outstanding at the moment. Counsel continue to explore whether they can reach agreement on this issue, but failing that, the AG’s motion on that issue will be heard at a date and time to be determined.
I am pleased with these developments. While it may for the moment leave unresolved certain very interesting (and important) legal issues related to solicitor-client privilege, the employee-employer relationship in the context of the state, and the duties of the Attorney General to act in the interests of the state (and not automatically in the interests of any minister or administrative official of the state), it does help to move the principal issue to resolution. I appreciate the assistance that Justice Mactavish provided to the parties to move this matter toward trial.
In my view, it is important that the trial not be delayed. If I am correct that the law requires a more rigorous examination than is being conducted (and that is now agreed to be the core issue that the court will decide), then the longer the trial is delayed,
- the longer lawyers in the Department of Justice will continue to act under unlawful instructions;
- the longer it continues to be possible that bills proposed to Parliament by a Minister will contain provisions that are likely or even almost certainly inconsistent with the Charter or the Bill of Rights without Members of Parliament and the citizens whose rights are affected being informed of this; and
- the longer it continues to be possible that regulations proposed to be made by delegates of Parliament will contain provisions that are likely or even almost certainly unauthorized and/or likely or even almost certainly inconsistent with the Charter and the Bill of Rights without the Clerk of the Privy Council advising the regulation-maker of the problem and, in the case of inconsistency with the Charter or Bill of Rights, without Members of Parliament and the citizens whose rights are affected being informed of this.
Those are not insignificant matters and delay in correcting them (if indeed the court finds as I ask it to) can result in significant harm.