PREAMBLE

Before you jump to any conclusions – which would be understandable, given my headline – here’s a spoiler alert (if you haven’t already heard the news from the CBC or Guardian): the Judge presiding at yesterday’s Motion Hearing in the PEI Supreme Court did not rule on the Contempt Motion Paul Maines filed against the PEI Government.

What did happen in those few minutes in Court yesterday – in my opinion – is even bigger news than a ruling in favour of Maines on that particular Motion would have been.

It’s important to know from the outset that the King Government tried to have yesterday’s Motion Hearing canceled. A “heads up” on that strategy was included in the Defendant’s Defense filing:

Now moot? Before the Hearing date even arrived? And before Maines received any records? That was a pretty confident, but perhaps slightly over-played strategic move on the part of Defendant’s Legal Counsel.

As it turned out, the Defendant did not provide Maines with all the records by yesterday, with a few hundred pages remaining to be disclosed to Maines. So the Defendant’s stated “assurance” gives the Judge some first-hand experience of how “assurances” to produce records from the Department of Economic Growth, Tourism and Culture get translated into actions in real life.

The Court Hearing yesterday, and all that Hearing and all the Court Orders entail, is just one story currently unfolding with this entire e-gaming and CMT lawsuit file. There are many other things going on behind the scenes as well. So much, in fact, that it’s been difficult for me to find enough time to keep readers up to speed with these blog articles.

The rest of this post will, therefore, offer a summary update on a few key issues, providing some of the most important information, and some analysis and commentary on the following:

1. 1. Yesterday in Court: Why it was a good day for democracy in PEI
   2. Maines files a “Second” Contempt Order against the PEI Government
   3. The King Government’s Defence for Yesterday’s Motion
   4. What’s Coming Next?

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1. Yesterday in Court: Why it Was a Good Day for Democracy in PEI

The Motion Hearing convened at 1pm yesterday (February 6, 2020). The only politician in the gallery was Joe Byrne, Leader of the PEI NDP.

We rose, sat down, then Judge Cann, who, incidentally, is the Judge appointed to the PEI Supreme Court in 2018 to replace Judge Campbell [See: “Gregory A. Cann appointed P.E.I. Supreme Court judge – Replaces Gordon Campbell, who became a part-time judge in January” August 31, 2018] immediately directed his attention to Maines. He said he understood that Maines had filed four separate Court Orders relating to four different FOIPs – which Maines confirmed – and that he had also filed a new Motion earlier in the day (February 6th) on one of those other three Orders, which Maines also confirmed.

The Judge then asked Maines if he expected he would be filing additional Motions related to the case before him. Maines indicated there would likely be one more Motion on the particular Order in front of him, but added there would also be Motions on other Orders as well. How many would depend on what the Defendant withholds or redacts in documents he has yet to receive.

Judge Cann then referred to a Rule of Court which allows a Judge to combine multiple Motions on related matters into one Motion Hearing. He then asked both Maines and O’Shea if either of them had any objection to him postponing dealing with the Motion before him, and proceed to combine all the Motions after the last Motion is filed, then schedule one Motion Hearing to deal with everything at once. Neither Maines nor O’Shea objected.

The Judge then asked Maines when he would be done filing Motions – and this is the beauty part, and part of the reason why I think today was a major win for democracy in PEI – to which Maines replied that it depends entirely on when the government provides the remaining documents which – he then added – he expects will be heavily redacted.

The Judge seemed completely fine with all of that, and simply told Maines to contact the Court to schedule a date for a “Motion Hearing” to deal with everything at once after he had filed his final Motion.

In my opinion, this is very good news for Paul Maines – and extremely encouraging news for all Islanders – for many reasons. A few that come to mind are:

(1) The Motion that Maines filed with the PEI Supreme Court yesterday morning was scheduled to be heard by Nancy Key on February 20th. Two different judges hearing Motions on the same case is not at all ideal, and not nearly as preferable as one Judge hearing all the Motions together. These issues are all interrelated, and the judge looking at all the FOIP Orders together and dealing with all the issues raised in all the Motions at one time is much more likely to bring forth a more complete understanding of the truth needed for a Judge to deliver a truly “just” ruling that serves the Common Good based on the law.

(2) Judge Cann’s decision on how to proceed immediately puts the King Government on notice that anything Maines raises in future Motions regarding anything the King Government does with respect to any remaining documents yet to be released in any of these four FOIP requests will almost certainly find it’s way into a Motion and end up under the eyes of the Judge hearing all the Motions at the yet to be determined future “Mega-Motion Hearing”. David Bowie’s song “Under Pressure” comes to mind.

(3) To me, the manner in which the Judge has established what I would consider to be an extremely fair process and procedure that allows Maines the freedom and time he needs to advance his best legal efforts in these matters is, what’s the word….”refreshing!” Attention on the need to keep the judiciary completely separate and unbiased from any Government influence (especially when Government is the “Defendant” in the legal action) is absolutely essential, and I’d say, with the process established here, is likely to be assured in the adjudication of this matter.

I’ve been receiving a lot of excellent articles recently from a couple of friends with an interest in the relationship between Government and the Judiciary which all speak about the importance of keeping the judiciary completely separate and untarnished from influence from Government to protect democracy. One such article was Chief Justice Richard Wagner on our democracy and the rule of law (27 Jan 2020 ) which you might like to read

(4) The ball is now squarely in the King Government’s court, and it could, and should, do what it could, and should have done a very long time ago: put as many people on the file as necessary to get every one of those records that don’t seriously violate personal privacy to Paul Maines – unredacted – immediately.

The PEI government has spent, and continues to spend, untold and significant amounts of taxpayer monies defending rogue actors. If the King Government is true to itself and Ministers were at all sincere in their peak as Official Opposition, they would follow the Act and release documents accordingly. Who are they protecting and why? Islanders can handle the truth – and accordingly, people can be held accountable. Hiding the truth is as bad as the original actions themselves, and possibly worse because those actions provide undeserved security and cover for wrong-doers which almost certainly guarantees similar scandals in the future.
The message I took from those few minutes in Court yesterday was as if the Judge had said: [Warning – heavily paraphrased NOT a direct quotation]:

“Yes, you are going to get your day in Court Mr. Maines, I’ll make sure of that, but let’s get this right o.k.? Figure out all the issues you need to address, file whatever you need to file, take as much time as you need, which I understand depends on how the Defendant acts on a go-forward basis, and then we’ll see you back in Court to deal with all your legal issues together at the same time.”

Perfect. And the public doesn’t yet fully appreciate just how those issues keep piling up. The second Contempt Motion already filed is, in my opinion, far more important than the Motion Hearing that was to take place yesterday and didn’t. The King Government will need to file a legal defense to that Motion soon, so I want to give a quick overview of what that second Motion entails.

2. Maines files a “Second” Contempt Order against the PEI Government

If you’ve been following my posts on e-gaming and the CMT lawsuit, you may recall from a recent post Do They Not Realize the Danger They’re In? that it is entirely possible that the PEI government used the “solicitor-client privilege” provision in the FOIPP Act inappropriately to hide information. I called that section of my article: “3. Solicitor-Client Privilege: The Government’s “Panic Room” & Escape Hatch.”

This is the only provision in the FOIPP Act that permits the PEI Government to withhold documents that no one – other than a Judge – not even the Information Commissioner, can see to verify that the privilege “attached” to particular documents meet the clearly-defined legal principals and conditions which determine legitimate solicitor-client privilege.

I wrote the following words about the use, and possible abuse, of the solicitor-client privilege by the PEI Government on these sensitive e-gaming files through this option in the FOIP ACT in my previous blog post, mainly because neither of the two individuals exchanging emails is a lawyer, something that is required to claim privilege:

“Is it possible that the lawyer drafting documents for Ms. Gaudet never considered that a Judge might want to see whether those documents were in fact what they were claimed to be? Most definitely…when was the last time an Islander filed a Contempt Order Motion against the PEI Government? I’m sure no one saw that coming, but here we are.”

It was therefore not at a surprise to learn Maines had filed a Motion to have the Judge evaluate whether the legal test for the solicitor-client privilege was indeed met in each case where this ground for withholding information was employed by the Defendant.

This second Motion is with a different Court Order than the first, and that Order has 36 pages completely withheld relying on solicitor-client privilege on communications between non-lawyers. Is there any possibility it could meet the test? Maybe.
Imagine for a moment that one non-lawyer party “emailed” the other non-lawyer party an attached document that was identified as a “solicitor-client” privileged document. Even if such a document was attached, it is unlikely that privilege applies. Normally, when client-solicitor privileged documents are provided to a third party voluntarily (even a fellow government employee in another department, as is the case with this second Motion) client-solicitor privilege is “waived”.
I’m looking forward to reading the Government’s Defence on this second Motion.

3. The King Government’s Defence for Yesterday’s Motion

What kind of a Defence do you file when you don’t have a Defence that makes any sense? The correct answer is as simple as the answer to that Acorn Stairlift TV commercial that incessantly reminds us daily during CBC Compass that the answer to the question: “How do you keep from falling downstairs?” is “Just don’t fall!” Well, in this case, the correct answer is just as simple: “Just don’t file!”

Unfortunately, when you’re a government-salaried in-house lawyer instructed to file a Defence by your client who is also your employer, and you want to keep your job, well, you actually don’t get to decide whether you file a ridiculous defense, your employer decides that for you. All you get to decide is whether you want to keep your job.

The Defendant’s legal counsel, Mitchell O’Shea, filed said “ridiculous” Defence and showed up in Court yesterday with Deputy Minister Erin McGrath-Gaudet, so we know what decision he made. And we also know what decision his client and employer made.

If the Government wasn’t prepared to admit the obvious, (that it is in contempt of the Orders) then there was really only ONE possible legal argument available to O’Shea for a Motion Record filing, so I’m not blaming Mitchell O’Shea or judging his legal abilities based on this one case (I imagine his hands were trembling and beads of sweat were dripping from his brow as he typed and watched the weakest possible legal argument imaginable slowly appear on the page).
We’ll get to what that “one argument” is in a minute, but let’s back up a step first, and put this whole matter in the proper context to get the correct perspective on the most important details, facts, and events.

After multiple broken deadlines to produce records on this particular FOIP request, first filed in May 2019; and despite repeated assurances that he would get a response by a certain date, then each of those dates would come and go, Government had finally exhausted all legal means to delay things any further and found themselves, by the public body’s own admission, “outside the scope” of the FOIP ACT (which is, of course, a euphemism for “Breaking the Law”).

It was the PEI Government that approached Paul Maines to ask if he would be willing to sign those Consent Orders. And it was the Defendant who decided the dates by which it was confident it could provide Maines with a response. The dates chosen by the Government were then written into the Order by the Defendant’s legal counsel who drafted the terms and conditions of the Consent Order.

The choice facing the King Government now is to either fess up that the Government breached the Orders and is thereby in contempt of those Orders, or else to argue it didn’t really know what the Order required Government to do. That’s a tough sell given the facts.

Might there be some “technical” legal escape route buried in the law that will get the Government out of this serious legal conundrum?

I think both the law and factual evidence is clear as a bell to anyone with a brain in this case. It really should be an open-and-shut case. But I’ve been fooled in Court before, confident I had “sure” legal wins that did not materialize in the decision. I’ve earned a fair measure of respect for the amazing ways wiley lawyers can pull obscure legal principles or technical rules out of little known, seldom-referenced legal precedents and steal the prize. Did O’Shea find such a legal nugget to win this Motion? Nope.

To find someone in “contempt” of an Order it is necessary to prove three things: (1) that the person had knowledge of what the Order required; (2) that what the Order required to do was clear and not vague; and (3) that there was a deliberate choice by the person not to do what the Order required, or to do what the Order forbid the person to do. Counsel for the Defendant cites the precedents establishing these three elements:

The Government lawyer admits knowledge of what the Order required but then goes on to argue that WHAT the Order required was vague and unintentionally misunderstood by the Defendant and that there was no INTENT to deliberately “not comply” with the Order.

What’s vague to the Government about the following wording in the Consent Order? Especially given that it was the Government that both requested this Order, determined the date it effectively imposed on itself, and then drafted and signed the Consent Order saying:

The language “Responding to the Applicant” is very deliberate here, because that’s what the King Government had to do in order to come back in line with the FOIP Act. At the end of the Consent Order, the Information and Privacy Commissioner then added the following wording above her signature:

That January 7, 2020, date was explicitly noted for this FOIP Order in the Consent Order by the public body, and then a second time by the Information Commissioner,; that’s twice on a one-page document. It’s simply not credible to believe the Defendant was “vague” about when the King Government was to do what the Order required the King Government to do… and that date was January 7, 2020.
As well, how is it possible to conclude that there is any “vagueness” about what the public body was to do? It had to do one thing: “respond to Paul Maines”. That’s all the Order required: a simple response from the King Government to Maines on that particular May 2019 FOIP request by January 7th. Again where is there anything vague about that?

So we have that one possible legal framework and argument – with three conditions needing to be met – the first of which the Defendant admits (having knowledge of the requirement in the Order).
The second condition (that the requirement in the Order is clear and not vague) the Defendant disputes. Given the laser-like precision with both the exact date and the exact requirement (a simple “response” to Maines) let’s assume that the judge is not going to accept the “vague” legal argument advanced by O’Shea. It appears the Defendant’s Counsel assumed as much himself when he wrote the following paragraph into his Defence:

I’m putting my money on the Court finding the Consent Order to be “clear and unambiguous”.

Which leaves just that last condition needing to be met: “Intention” to prove breach of the Order and contempt.

The defendant’s Counsel, first of all, reminds the Judge that the full onus to prove intention – beyond a reasonable doubt – lies entirely with the Plaintiff. Why? Because a Contempt Order is a “quasi-criminal” offense, which O’Shea rightly says establishes a very high bar for the Plaintiff to prove that a breach happened intentionally with deliberation. O’Shea argues the Plaintiff fails to prove such intention.

The Defendant’s Counsel goes on to talk about how the Judge can, upon ruling that a person is found in contempt of an Order, impose any of the following consequences:

There’s no question that a finding of Contempt is indeed a very serious legal offense that carries equally serious penalties and consequences. But what exactly defines or constitutes “proof of intent”? Well, to find that answer we need look no further than the legal precedent O’Shea cites in his own Defence:

We see here that a person can be in breach of an order in one of two ways: (1) the person intentionally “does” the act that the order prohibits; or (2) a person intentionally fails to do the act the order compels. We’re obviously dealing with the second situation here, but because the Defendant was the party that determined, drafted and ratified the Consent Order, the “intentionality” expressed in the Consent Order by the Defendant stands on its own and does not need to be proven. In other words, the Defendant declared its “intention” (compelled to be done by the Order) itself:

By saying it was “confirming its intention to provide responsive records” as per the specified timelines (January 7, 2020 for this Motion) by signing the Order, the Defendant is thereby confirming that the formal expression of intention embedded in the Consent Order was premeditated and ratified legally.

The public body clearly did not “act” in accordance with that expressed intention, which demonstrates that at some point a decision was made to abandon the commitment made to respond to Maines by January 7, 2020, and replace it with the opposite intention – not to comply – which in fact was even clearly expressed in writing when, with no prior communication about a decision to unilaterally take more time, the public body casually informed Maines in a written communication after breaking the January 7th deadline that he could expect to get a response in two more months. Intentional? Absolutely!
Missing the January 7th deadline was no accidental oversight or a result of insufficient resources. It was a very deliberate decision to power kick the release date for the records another two months down the road. Don’t forget that Maines has an Appeal of Judge Campbell’s decision to dismiss CMT’s lawsuit coming up in May. The public body has delayed the release of records that would have helped Paul Maines until after important Court dates before, so there is no reason to believe it isn’t trying to do the same thing with these documents.

The King Government has so far treated this matter as if it was of no consequence ignoring what the Consent Order required the Government to do: respond to Maines by January 7th.

This is a matter of slightly more consequence than, say, forgetting to pick up a loaf of bread on the way home from work…THIS IS A PROVINCIAL GOVERNMENT BEING IN CONTEMPT OF A CONSENT ORDER THAT IT ASKED FOR FROM THE APPLICANT, SO AS TO STOP BREAKING IT’S OWN LAW, THE FOIPP ACT. It’s really that simple.

As Mr. Maines explains so simply in his CBC Compass interview, that if after all he’s been through to get records, with challenges and reviews to the Information Commission, and now Supreme Court legal actions….if all that has not yet provided him with the documents he has a right to receive under the law, then what possible chance do any of us have of getting Government documents in the future if the Government can simply get away with either indefinitely delaying production, or withholding documents entirely without consequence? The FOIPP Act will be less than completely useless because it will maintain the perception that it does something that it can not do!

It was good to see this story covered on Compass and within the Guardian. I’m sure many Islanders were learning about this for the first time. These stories probably left people who are unfamiliar with the details of the case with the impression that it was just a staffing and “resource” issue. It was really disappointing for me to hear the Government use that disingenuous line. That’s not how the system works.

I had an access request assessed at over $4,000 a couple of years ago. I challenged it and eventually only paid about $600. The public body’s assessment of $4,000 was based on a staff wage rate per hr. x number of hours for search and processing, plus photocopies if hardcopy records are requested.

The FOIP Act only allows for a few hours of search and records, unless the public body (in this case, the Department of Economic Growth, Tourism and Culture) decides not to request payment from applicants. At no time on any of these four Court-enforced Orders did the Public Body seek resources from the applicant which they were entitled to do under the Act. Now the reason the Government is telling Islanders why it didn’t give Maines the documents is that there was a resource issue? I don’t believe Islanders are that gullible.

4. What’s Coming Next?

I’ve written about a FOIP case of mine that was in “deemed refusal.” I currently have a review underway with the Information Commissioner on that file, and although some documents are yet to be provided to me, I did receive over two hundred pages on Wednesday of this week. There was just one page that was important – but it was REALLY important, and I’m going to write a post about that in a day or two.

I’ve decided that my two “wrap-up” articles in my first 25-part series will be the last of the 52 promised articles I plan to post prior to the May Court date, because they are really the “sum up” articles, and there’s so much additional information coming out as the focus gets honed, and the really important documents, at least some of them, are beginning to slip from Government’s clutches and enter the public domain.

Until then, if you’d like to read what Maines filed for yesterday’s Motion Hearing that has yet-to-be heard, as well as the Motion Record of the Defendant, have at it:

Maines vs PEI Dept of Economic Growth & Tourism. Contempt of Court Order Motion Record

Government Defence Motion Record