Bill No. 203 - Crown Attorneys’ Labour Relations Act. - Second Reading

CLAUDIA CHENDER « » : Mr. Speaker, it would be a stretch to say that I am pleased to rise and speak to this bill, but I feel that it is an important thing to do. Sometimes, when we have bills like this before the Legislature, bills that are important, that are offensive to some of us at least, we take the time to say our piece. Many members will speak, and we do that to lay out the case for why the bill, in this case anyway, is so pernicious. We do it to make sure that those listening understand that we grasp the seriousness of the issue.

Sometimes, hearing members say the same thing over and over again in this Chamber can be frustrating. It can be frustrating for the people listening, and for some of us it can be frustrating. Why would we say the same thing over and over again? Sometimes it's necessary, and this is one of those times.

This is one of those times because from the moment that this bill was introduced - in fact, I would go so far as to say, based on my conversations before that, almost everything that the government has said is almost the exact opposite of what the government is doing. I think in this case it's incumbent upon all of us in the Opposition to take the time to unpack what is going on.

I'll start with the fact that this is a Finance and Treasury Board bill. When we were invited to a confidential briefing with 45 minutes' notice about a Finance and Treasury Board bill that was going to be introduced, none of us had any idea what it would be. We were of course shocked to find out that this bill would be introduced at all, but we were doubly perplexed that it was being introduced as a Finance and Treasury Board bill. I would submit that that decision is not one of good governance; it's not one of clear executive Cabinet responsibility.

It was a PR decision, frankly. It was decided that this bill, that this decision of the government, should be framed for the general public as a finance issue so that the real issues at play in this bill, namely the continued trampling of collective bargaining rights, of fair dealing, and of respect for our justice system, could somehow be occluded. There was some sense that maybe if we call it something else, everyone will believe it is something else.

When we sat down to hear about this bill, what were we told? This is a bill that gives the right to strike to Crown attorneys. When I sat with my staffer in the room when they announced that bill, she sent me a text. It had one word, and it said, "weird." Again, we thought, well that's weird, why are we being briefed on a bill that gives Crown attorneys the right to strike? But no, it's not a bill that gives Crown attorneys the right to strike, as we have now heard from several people in this Chamber.

I would submit that what the government has done the last 24 or 36 hours is essentially tried to put lipstick on a pig. They are presenting a bill that will be unpopular; they are presenting a bill that is quite possibly unconstitutional; and they are presenting a bill that flies in the face of all of the former commitments they made when they were in Opposition. Now they're saying that this bill exists to protect people's Charter rights under Section 2(d) to collective bargaining and that it gives Crown attorneys the right to strike, but we'll come back to that in a moment.

When we heard this bill introduced on the floor of this House today, the Minister of Finance and Treasury Board began by speaking about everything but anything that this bill has to do with. She talked about pre-Primary; she talked about all kinds of things. But she didn't talk about the fact that the government has decided to unilaterally change a contract with an essential sector of the public service that they themselves negotiated.

The minister also spoke about fairness to other public sector employees. I think you would be hard pressed to find many public sector employees in the province who feel like they have been dealt with fairly in the last six years. (Applause.)

The government is saying almost the exact opposite of what's true. Having sat in this Chamber for two and a half years, I can say that it can almost be vertigo-inducing sometimes because you hear these words, and they're sort of meant to mean one thing, and they mean almost the exact opposite. Even with legal training - I did a stint in Legislative Counsel, although I can't do what these guys do - I struggle every day to understand the details of the legislation that is put forward because, quite frankly, I don't think it's going too far to say that it is designed to confuse.

I think the Leader of our Party spoke about the fancy title of the bill. It's not just the title; it's the whole bill. It doesn't speak to what is actually happening in this bill, respecting the rights of public sector employees. This does not respect the rights of public sector employees.

This bill takes away their right to strike, and I'll talk about why in a second. First I want to join some of the comments of my colleagues and talk about what Crown attorneys do. A lot of us would have some understanding of what Crown attorneys do from television, from American television in particular. But that doesn't go far enough. That doesn't actually talk about what they do.

In my experience, watching the work of Crown attorneys when I worked at the Nova Scotia Barristers' Society, doing a short articling rotation through the Crown office in British Columbia, and being in dialogue with Crown attorneys, the essence of their role is really to uphold the integrity of our justice system.

When there is a criminal matter in a courtroom, the accused has the right to be defended. But the Crown attorneys don't just prosecute; they are there to uphold the integrity of the Crown, and they do that. They do that on nights and weekends and at the expense of their own families. Not only do they do that, but in my experience, actually they do that with a tremendous amount of clarity and resilience and often even joy. Not joy at the darkness of the work, but joy at the service that they know they are providing.

Mr. Speaker, here's what this bill does. This bill unilaterally changes a contract between the Crown prosecutors association and the government. It is not a collective agreement because the Crowns do not have a union. It is a contract. It is a contract that was fairly negotiated between this government and this group of public servants, and it is a 30-year contract. When the contract was negotiated, this group of employees agreed to take what they saw as an inferior financial package in exchange for arbitration.

The Premier of this province was on the front page of the newspaper signing that contract. That right to a third-party determination - the one which the government cannot, in any good conscience, allow Nova Scotia taxpayers to shoulder - is a right that was given to this group of public servants by this government, Mr. Speaker. So, it is beyond credulity that now we are told that suddenly it's an emergency; suddenly this right needs to be taken away because they want to use it. How can anyone bargain in good faith with this government when at any moment anything before them can be taken away through threat, fiat, or legislation? It is beyond bad faith.

We know that this legislation is coming at this time because the Crown attorneys and the government are at the bargaining table and they are too far apart. Our understanding is that the Crown attorneys were asked if they would accept the changes contemplated in this bill, although probably laid out in a less confusing way, and the answer was, absolutely not, why would we do that?

So then what happened? Did the government try to negotiate, or did they come back with a better offer? No, Mr. Speaker. They introduced legislation that had clearly already been written. They introduced legislation the very next day. Not only did they do that, but as we were being briefed on the legislation - as media was being briefed on the legislation - the Crown didn't even know it was coming. How on earth, Mr. Speaker, can this government say that this has anything to do with good faith?

This bill takes away, as I said before, the right to send something to arbitration. What the government says the bill does is that, in its place, it gives the Crown attorneys the right to strike, but here's the kicker, Mr. Speaker. In order to strike, the government and the Crown must agree within 20 days - less than three weeks - on what essential services must be in place in order for that strike to take place.

I tried to ask about this in Question Period today. It has nothing to do with this bill; it has to do with the fundamental functioning of our justice system. It is a known fact that our system could not function without one of these Crown attorneys. Period. So, when the Crown and the government sit down to decide how many Crown attorneys we need to keep this system going, the answer will come in a heartbeat, and it is all of them.

We need all of them to keep this system going, and not only do we need all of them to keep the system going because we need to keep our courts moving, but because, as I said before, this is a profession that has ethical underpinnings.

All these lawyers take an oath when they are called to the bar and they have an ethical obligation to do their work. Even if they wanted to be on the picket line, I have a hard time believing that most, if any of them, would walk out on their cases to do that. Why? Because they are responsible to the work that they do, Mr. Speaker.

Let's say though, for the sake of argument, that the Crown attorneys decided they wanted to strike, that they couldn't agree with the government - which, given the facts that I have laid out, I think it's pretty clear that no one is going to bet on an agreement in 20 days. Then what happens? Then it goes to the Labour Board and the Labour Board gets to decide what an essential service regime would look like for the Crown in the event of a strike.

So, given the facts that I've laid out, given the fact that we had 415 cases last month alone that fell outside of the time frame of the Jordan decision for court delay, and given the fact that any one of these cases, as my colleague pointed out, could result in a serious breach in the upholding of justice, could result in a mistrial in a murder case or in human trafficking, which we have been talking a lot about in this Chamber. Given that, it is more than likely that the Labour Board would decide, as I have decided, that all of the Crown attorneys are an essential service, then what, Mr. Speaker? Well, then they can't strike. So how on earth does this legislation give this group of Crown Attorneys the right to strike? I'll answer that - it doesn't.

What if they decided to strike anyway, Mr. Speaker? Well they would pay $1,000 a day, plus $200 personally and they, as an association, I think would pay a fine of not more than $100,000 and a further fine of $10,000 each day. Obviously, that would prevent a strike, and if it didn't we would know that we have some pretty committed folks on our hands - but we certainly hope that it could never come to that. So, that's a little bit about what this bill is about.

I want to talk a little bit about what led to this bill. It's a pretty established fact in bargaining, and I think my colleague will speak to this - who has much more experience in the bargaining universe and the labour universe than I do - that the bargaining process is confidential. It is confidential to uphold its efficacy. You want people to come to the table. We hear the government say this all the time as they create one board and review committee after another, that is confidential, that doesn't report to us, whose recommendations they don't need to follow - they want everything to be confidential.

Sometimes there's a reason for that and generally speaking, in the cases I just laid out, I don't think there is. In this case the reason this is confidential is because we want the parties to come together, bargain in good faith - we want it all out on the table - and then when there is a tentative agreement, that's when the bargaining agent or the people involved would take it back to their membership for ratification.

Mr. Speaker, we have a situation in which on Tuesday we had the Crown and the government discussing terms of an agreement. The Crown counsel who were privy to this agreement were only a handful of people, the people at the bargaining table. None of the other Crown attorneys in the province knew what it was that was being agreed upon and that was because they respected the bargaining process.

Then Wednesday morning we had the Minister of Finance and Treasury Board laying it all out on the table - this is where the Crown is, this is where we are, we're 10 per cent apart. Now, Mr. Speaker, while I have serious questions about whether this could be called bargaining at all, I have even more serious questions about the ethics of the government unilaterally breaching the confidentiality of a bargaining conversation not only within government, not only within Executive Council, not only within this Chamber, but to the media and to the general public.

Mr. Speaker, as I said before, this is a breach of contract. I want to talk for a moment about the fact that as I said before, previously this association accepted a wage pattern in exchange for this right to arbitration. The increases that were sought then and rejected and the increases that are being sought now and are again being rejected are based on comparators in similar jurisdictions. They are not based on Ontario and British Columbia, they are based on similarly sized jurisdictions and the pay that happens there.

Again, Mr. Speaker, at the risk of being repetitive, I think none of us can help but think about the situation we have in Nova Scotia with doctors. The government played hardball with the doctors because they banked on the fact that most Nova Scotians wouldn't care because doctors make a lot of money. Guess what? Doctors make a lot of money because that's how much money doctors make and because they save lives. And because the government hardballed those doctors, now we don't have enough doctors.

I cannot tell you the number of doctors I talked to in Nova Scotia who are leaving, who are wishing to leave, who are hoping to leave. It is shameful, Mr. Speaker, to use the words of my colleague. I fear that the same thing will happen in the Public Prosecution Service.

These are civil servants who uphold the integrity of our justice system. If we play hardball with them and we talk about it as a dollars and cents issue instead of an issue of fair compensation - which, I might add, as in all labour discussions, I'm sure was not the only thing on the bargaining table - that does a serious disservice to the esteem in which we place the members of our public service. I'll go further and say that Crown attorneys make less than the private bar and they make less than legal aid lawyers and they do a great deal of work.

Like many of us, I think it would be fair to say that Crown lawyers take a lot of flack. If anyone can have some empathy for that kind of flack, I think it's those of us in this Chamber, and I would think it would be particularly the members of the government. They make tough decisions, Executive Council in particular; they run the province and they get a lot of feedback for it, but they keep doing it. They keep doing it, I hope, because they feel called to do it. It is the same with our Crown attorneys.

I think it's so important, and we've said this so many times, that we give our public service, our Crown, all the members of our public service, the respect to which they are entitled. Mr. Speaker, this is a pattern. It's not just a pattern in the public service, but unfortunately, and even more worryingly in certain ways, it's a pattern in the justice system.

The judges in Nova Scotia are currently before the Supreme Court of Canada. Why? Same issue. They were seeking an independent opinion about their compensation that took into account comparators across the country, that gave a fair description of what that was, and this government decided that they would rather say that they were saving the dollars and cents, banking on the fact that people aren't going to be sympathetic, and the judges have now taken that to the Supreme Court of Canada. I should point out that that tribunal, which will recommend a pay package to the minister, is meeting right now. So we look forward with some interest to what the minister does with that decision.

It's not just the judges, Mr. Speaker. It's the justices of the peace. Just this last Spring, we were in here having this same conversation about the fact that the justices of the peace no longer can rely on an independent party to determine their compensation. It's one thing when you say an independent party to determine their compensation, but it goes to the heart of independence in our justice system.

Our justice system is separate from our government. Our justice system upholds justice. We need to ensure that they not only do that in practice, but that there is no perception of interference in that. I think, sadly, that we have all but abandoned that perception now.

In closing, Mr. Speaker, there is no way that this move can be interpreted as bargaining in good faith. The Crown prosecutors and the government have a framework in which they bargain. It forms a contract and that contract has been unilaterally changed by this government with this legislation. There aren't many groups left to be legislated. This is a clear pattern. The government talks about this as a fiscal issue, but it is not - it is a labour issue. It is a constitutional issue and it is fundamentally an ethical issue.

If the government proceeds with this bill, then they should call it what it is: the we-changed-our-minds-and-want-to-dictate-your-contract bill.