Ruling expected Monday in Yukon court case with major implications for government

A case in front of the Yukon Supreme Court has major implications for the territorial government, regardless of who wins.

The Yukon's ombudsman and child and youth advocate filed a petition seeking a court order that would undo changes to their offices' budgets imposed by officials with the finance department.

Justice Edith Campbell is expected to deliver her decision Monday.

Over two days of arguments this past week, lawyers for both sides plumbed the most arcane depths of the law. 

At the heart of the dispute is a conflict between the executive branch of government (also known as cabinet) and the legislative branch.

Historically, the budgets of independent officers have been approved by the Members Services Board, a five-member, all-party committee of the legislature that manages the assembly's affairs. That's because the legislative assembly as a whole and the government are not the same thing.

Shauna Stikeman, who's representing the child and youth advocate, argued the legislation that established the ombudsman office clearly set out a budgeting process that is meant to keep the office free from political interference from the government.

Allowing the finance minister to muck about with those budgets, she said, opens up the risk that governments could punish the independent officers when they issue findings the government doesn't like.

"Any erosion of this trust risks eroding public confidence in these institutions," Stikeman said. "This is about so much more than dollars and cents."

Lawyers for the government, meanwhile, say the territory's Financial Administration Act takes clear precedence and requires that every dime of public funds must pass through, and be approved by, the finance department's Management Board.

"There is no category of money out there that isn't captured by the Financial Administration Act," said government lawyer I.H. Fraser.

Fraser also tried to squeeze the petitioners' case between two other legal principles. For one thing, he argued, the officers' budgets are now shielded from court action by parliamentary privilege, a unique set of rights that extends to the assembly and its members.

While parliamentary privilege normally applies to actions within the assembly, Fraser said privilege also applies to bills that are in the process of being drafted (in this case, the territorial budget).

"If you're in the legislative process, then parliamentary privilege applies," he told Campbell this week. 

"There's nothing a court can properly do about it."

At the same time, Fraser said the petitioners' case is premature because the legislature has yet to sit — the spring session begins March 6 — and finalize the budget.

Floyd McCormick, the clerk of the Legislative Assembly from 2001 to 2019, said the case shows the need for clearer rules to protect the assembly's independence.

"Regardless of how it turns out, whether the ombudsman and the child and youth advocate are successful or not, the legislature needs to change legislation in order to make sure that it's clear that Member Services Board authority is distinct from that of the Department of Finance," he said.

McCormick, who was in the courtroom for two days of arguments, acknowledged he supports the independent officers in the case. But he said the issues at play are important and, to him at least, interesting.

"You have one side making their arguments and you feel that's pretty solid. And then the other side gets up and make arguments and well, you know, these people have a good point too," he said.

"So I wouldn't presume anything about how the judge is going to rule on this."