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How the PMO ‘in-house lawyer’ sidelines the Attorney-General

Adam Dodek is a founding member of the University of Ottawa's Public Law Group and the author of The Canadian Constitution .

I feel for Benjamin Perrin. The so-called "Prime Minister's lawyer" estimated that he received 20,000 e-mails at all hours of the day in the two years that he worked in the Prime Minister's Office. Mr. Perrin appeared to be a one-man legal team dispensing legal advice under enormous pressures. But it is not clear why the PMO needed an in-house lawyer in the first place.

Perhaps the most surprising aspect of the Mike Duffy trial has been the complete absence of any reference to the person who is supposed to be the Prime Minister's actual lawyer. Hint: The following people have held this role in the past – Kim Campbell, Davie Fulton, Anne McLellan and Irwin Cotler. I am referring of course to the minister of justice and attorney-general of Canada.

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Mr. Perrin appears to be the first lawyer to serve the function of "in-house counsel" to the PMO. Many lawyers have worked in senior roles in the PMO before – as policy advisers and chiefs of staff – but no one has been able to identify anyone who worked in the PMO who had the title "legal counsel" as Mr. Perrin did. There is an obvious reason for this.

The attorney-general is the government's lawyer. Quite specifically, the Department of Justice Act provides that the attorney-general – as minister of justice – be "the official legal adviser of the Governor-General and the legal member" of the cabinet. The minister of justice is responsible for providing legal advice to all government departments, including to the prime minister. The creation of an "in-house lawyer" within the PMO appears to sideline the attorney-general of Canada and the 2,800 lawyers who support him working for the Department of Justice.

A partial explanation for why the AG has not been mentioned in the Duffy trial may be the lack of clarity over what role existed for "the government's lawyer" in the negotiation with Mr. Duffy to repay his questionable expenses. This now appears to be almost entirely a party matter. The PMO is a murky world where partisan politics and government intertwine. As a lawyer, Mr. Perrin described his client as "the Government of Canada." In providing legal advice to the Prime Minister on the residency requirements for Senators under the Constitution, Mr. Perrin was certainly providing advice on a matter relating to the Government of Canada.

However, how is reimbursing Mr. Duffy either from Conservative Party funds or, as ultimately occurred, from Nigel Wright's personal funds, a matter that implicates any legal interest of the Government of Canada? The striking absence of involvement by the Privy Council Office, the Department of Justice and the attorney-general on this matter speaks volumes. The deal to pay Mr. Duffy (and his lawyer) for reimbursing questionable expenses was a matter for the Conservative Party and not the Government of Canada. Conservative Party lawyer Arthur Hamilton should have been on the file instead of Mr. Perrin.

From what we know so far, Mr. Perrin acted honourably under intense pressures. However, he should never have been placed in such circumstances. In fact, his position should never have been created and should be abolished.

The office of the Attorney-General of Canada has a long and proud history that predates Confederation. It is sad to see that it has become so marginalized.

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