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Protecting the independence of the attorney-general

If adopted, a resolution at the CBA’s February Annual General Meeting would call on the federal government to strengthen the constitutional independence of the AG.

Lady justice

A controversial Canadian political story in 2019 sowed the seeds for one of the CBA’s proposed resolutions at its Annual General Meeting in 2020.

The dual roles of the Minister of Justice and Attorney General of Canada became one of the sub-themes of the SNC-Lavalin scandal that dogged the federal Liberal government for most of last year. After former Minister of Justice and Attorney-General Jody Wilson-Raybould was shuffled to a different role in Cabinet in early 2019, she made it known that she felt pressured by the Prime Minister’s Office and Privy Council Office to undertake a deferred prosecution agreement with engineering firm SNC-Lavalin. Ethics Commissioner Mario Dion later concluded that Prime Minister Justin Trudeau had improperly pressured Wilson-Raybould.

During the scandal, the government-appointed former Minister Anne McLellan to review whether a single minister should continue to hold both roles, as has been Canadian custom. McLellan ultimately recommended against splitting the jobs. But she did call for the AG’s role to be “first and foremost” the chief law officer of the Crown, superseding the Justice Minister’s duties.

The resolution before the CBA membership is intended to support the McLellan recommendation, with a focus on amending the Department of Justice Act. It urges the federal government to revise it to refer explicitly to the constitutional independence of the AG in prosecutions. The resolution also states that any advice given by the AG to Cabinet must be apolitical.

Ian Carter, a partner at Bayne Sellar Ertel Carter and past chair of the CBA Criminal Justice Section, is moving the resolution. While McLellan found policy benefits to keeping the roles together, Carter says she concluded “that there were a number of things that could be done to allay concerns, essentially about political interference in judicial cases, and primarily in criminal cases.”

Adam Dodek, dean of the Common Law Section of the University of Ottawa Faculty of Law, has advocated for splitting the two roles. He says the events surrounding SNC-Lavalin show the need to protect the constitutional independence of the AG, and the CBA has a role to play in promoting it.

“As the representative of Canada’s legal profession, it's important that [CBA] continue to ensure that the government follows through on its commitments to increase awareness, training, and education surrounding the independent role of Canada's attorney-general,” says Dodek.

Carter says the resolution is also intended to express the importance of the rule of law in prosecutorial authority, at a time when that principle is being threatened elsewhere in the world.

“The value is to reassure Canadians that we do operate in a system that is based on the rule of law, and that decisions on proceeding with prosecutions are not made for political reasons,” he says.

Carter says both prosecutors and defence counsel should be supportive of the resolution because prosecutorial decisions free from government interference is a cornerstone of the justice system.

“In my experience, the Crown takes its role as an independent actor very seriously and obviously it does not want any encroachment on that,” he says.

While the CBA resolution itself does not mirror Dodek’s position, he says it is one step of several that are necessary.

“I think one of the lessons that we learned from the events surrounding SNC-Lavalin, is that many of us took the constitutional independence of the attorney-general for granted,” he says. “The CBA, in particular, needs to be vigilant in reminding governments of whatever political persuasion, the public service, political appointees, and members of the profession about the importance of the constitutional independence of the attorney-general.”

For more on this topic and to share your views on the proposed resolution, please visit our discussion board.