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Opinion The impossible position: Canada’s attorney-general cannot be our justice minister

Adam Dodek is the dean of the Common Law Section of the University of Ottawa’s Faculty of Law, a founder of its Public Law Group, and was the chief of staff to former attorney-general of Ontario Michael Bryant. He is the author of The Canadian Constitution, second ed. (Dundurn, 2016).

Liberal MP Jody Wilson-Raybould, former Canadian justice minister, speaks in the interim House of Commons in the West Block on Parliament Hill on Feb. 20, 2019.

CHRIS WATTIE/REUTERS

The arcane details and nuances of Canadian law rarely become the matter of national debate. But legal terms of art such as deferred prosecution agreements, solicitor-client privilege and the Shawcross doctrine have become instruments of political analysis and rhetoric amid reports that Jody Wilson-Raybould, then the justice minister and attorney-general of Canada, was pressed by the Prime Minister’s Office to resolve criminal charges against Montreal firm SNC-Lavalin.

But regardless of what transpired between the Prime Minister and his attorney-general in the SNC-Lavalin case, this much is clear, and has been for years: Ms. Wilson-Raybould was placed in an intolerable conflict the moment she was sworn in as both minister of justice, a political role charged with developing policy and drafting legislation for the Justice Department, and as the attorney-general of Canada, responsible for providing legal advice to Canada’s executive branch and representing the government in legal proceedings.

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The answer for why the two offices are combined is simple, if unsatisfying: That’s the way it has always been in Canada, and because the combined role is what the law dictates, according to the Department of Justice Act. But governments do combine and divide departments from time to time. Kim Campbell combined several departments to create Human Resources Development Canada (HRDC), which was then divided in 2003 into two separate departments, and then re-united in 2006; and Paul Martin’s government split the Department of Foreign Affairs and International Trade (DFAIT) into Global Affairs Canada and International Trade in 2003. Mr. Trudeau himself even formed two new ministries out of the department of Indigenous and Northern Affairs Canada in 2017. The Justice Department and this combined role, however, has remained largely unchanged since the department’s creation in 1868, with the biggest change coming in 2006, when its prosecutorial arm was spun off into a separate office, the Public Prosecution Service of Canada (PPSC). Of course, it is this relationship that’s at the heart of the current controversy involving the PPSC, the attorney-general, the Prime Minister’s Office and SNC-Lavalin.

There is no deeper historical reason that the two jobs are fused in Canada, either. In the British parliamentary system, from which Canada inherited its governance structure, the attorney-general and the Minister of Justice (Lord Chancellor and Secretary of State for Justice) have always been two separate positions. The British minister of justice is a member of cabinet, while the attorney-general is not, although the latter does attend cabinet meetings.

Simply put, combining the roles and responsibilities of the minister of justice and the attorney-general of Canada places too much on one person. This is often expressed in the quaint phrase adopted by scholars, policy wonks and legal insiders that the attorney-general wears “several hats,” or even by the Prime Minister himself, when Mr. Trudeau wrote his mandate letter to Ms. Wilson-Raybould in November, 2015: “As Minister of Justice, you are the legal adviser to Cabinet. In this capacity you are responsible with the administration of justice, including policy in such areas as criminal law, family law, human rights law, public law and private international law, constitutional law and Aboriginal justice. As the Attorney-General of Canada, you are the chief law officer of the Crown, responsible for conducting all litigation for the federal government and for upholding the Constitution, the rule of law, and respect for the independence of the courts.”

This arrangement does not accord with modern concerns about duties of loyalty and conflicts of interest. And it certainly does not mesh with what we know about how the brain operates and how certain types of cognitive biases affect how we make decisions. Canadians often expect the attorney-general to act independently and put aside partisan concerns, as Ms. Wilson-Raybould was asked to do in the SNC-Lavalin case, but also to uphold the Constitution and the rule of law. But cognitive research by the likes of psychologist and economist Daniel Kahneman tells us that it is very hard for our brains to actually function in this way. We cannot simply turn off the partisan part of our brain and switch on the independent part, and vice versa.

Justice ministers are expected to advise Parliament. The Department of Justice Act requires the minister of justice to examine every regulation and every government bill that is introduced in the House of Commons to ascertain whether any of its provisions are inconsistent with the Canadian Charter of Rights and Freedoms and to report any such inconsistency to the House of Commons “at the first convenient opportunity.” No minister of justice has ever reported any inconsistency to the House of Commons in the 37 years that the Charter and this provision have been in existence. We should not be particularly surprised by this, given the layers of conflict that Ms. Wilson-Raybould and her successor, David Lametti, find themselves in.

But justice ministers are decidedly partisan: They develop policy and legislation relating to “criminal law, family law, human rights law, public law and private international law, constitutional law and Aboriginal justice," such as medical assistance in dying, bail reform and more. As attorney-general, they provide the best independent legal advice to their own department and themselves on those same policies. Then, through the justice-minister lens, they are required to report any inconsistencies with the Charter to the House of Commons. We talk about the minister wearing many hats, but these legal contortions are enough to make anyone’s head spin, no matter what sits on top of it.

Bluntly, this is a clash of loyalties and a conflict of interest. How can the minister and attorney-general provide legal advice on their own policies or legal advice that they have a political interest in promoting? How can they then fulfill their duty to the House of Commons to report any inconsistency under the Charter?

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In the corporate context, it used to be common to have lawyers on boards who would often provide legal advice to the board, or funnel work back to their law firms. Modern governance structures have attempted to clarify the responsibilities and duties of boards. Now more than ever, that same level of reflection, rethinking and self-scrutiny needs to be applied to the vital positions of the justice minister and attorney-general of Canada.

We need to have a minister of justice who is responsible for justice policy in the same way that the minister of health is responsible for health policy. But it is not apparent that we need a lawyer in this role any more than we need a doctor as minister of health, a farmer as minister of agriculture or a teacher as minister of education. To many lawyers, this statement will be viewed as sacrilegious if not treasonous, but if we are honest with ourselves, we will admit that we lawyers simply have not done a good job creating a justice system that is accessible for Canadians. We certainly do not have a monopoly on good ideas for the justice system.

We also need an attorney-general who is the legal adviser to government. This person does need to be a lawyer, but she does not necessarily need to be in cabinet. Again, this may sound offensive to Canadian ears but it is the standard operating principle in Britain: the attorney-general is an elected MP who advises and attends cabinet as necessary but is not a member of cabinet. The attorney-general oversees prosecutions and provides legal advice.

And we need a House of Commons and Senate who have independent legal advisers who are completely loyal to them, and who don’t worry about the political ramifications for their department or for their place in cabinet. The justice minister of the government of the day, representing the executive branch of government, simply should not be giving advice to the legislative branch.

There are many questions left to answer in the tangled SNC-Lavalin controversy, and that will remain the case until we know the nature and terms of Ms. Wilson-Raybould’s testimony. We still don’t know what the ramifications of the affair will be. But this never would have happened at all if Canada had done the hard work already: rethinking the role of the person who reflects how partisan politics work within what should be a purely legal system. It would be a shame if the fallout didn’t spark a new vision, too.

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