An internal memo claims Crown lawyers were being overruled and told not to use certain defences to appear less adversarial toward Indigenous plaintiffs
OTTAWA — It was a curious remark, seemingly unrelated to the scandal that had brought the Clerk of the Privy Council before the justice committee of the House of Commons to testify for a second time.
This directive was intended to reform the way the government conducts itself in court cases involving Indigenous peoples, in part by promoting negotiation over litigation. “Moving forward with recognition and reconciliation means we cannot continue to rely on adversarial court proceedings to lead the way,” she said in a statement on Jan. 11, when the document was published.
The memo, dated July 2018, also describes an environment of increasingly “pervasive and intrusive” micro-management of litigators’ files, in which Wilson-Raybould’s personal views were given a great deal of weight. Unlike with criminal prosecutions, which are conducted by the Public Prosecution Service of Canada and in which the attorney general would only intervene in exceptional circumstances, it is the attorney general’s role to direct civil litigation. As the client in civil cases, the government has to instruct its lawyers how to proceed.
A senior Department of Justice official — who would speak to the Post only on background — did not address the memo directly but characterized concerns raised by government lawyers as the kind of growing pains that accompany any change from the status quo. “I think the biggest challenge we’ve faced is helping competent litigators through the change that’s being asked of them and assuring them that this is not some political or public policy or initiative,” the official said.
Instead, the source said, legal battles have continued, but with lawyers sometimes being overruled against their better judgement. “With this litigation strategy, I just see it coming back to bite people in the future, and to make this relationship between First Nations people and the rest of Canada worse rather than better.”Many experts in Aboriginal law have hailed the directive as a step in the right direction. “It’s not a handcuff of the Crown’s position by any means.
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