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Politics McLellan report recommends not splitting roles of justice minister and attorney-general

Former federal finance minister Anne McLellan says in her report she does not believe the two roles need to be split to protect prosecutorial independence and promote public confidence in the criminal justice system.

Kevin Bissett/The Canadian Press

A report commissioned by Prime Minister Justin Trudeau says there is no need to separate the roles of attorney-general and minister of justice in order to prevent political interference in federal prosecutions.

Former Liberal cabinet minister Anne McLellan was asked by Mr. Trudeau in March to determine whether the roles should be split. The request came after former attorney-general and justice minister Jody Wilson-Raybould said she endured months of political pressure from officials in the Prime Minister’s Office to direct federal prosecutors to negotiate a deferred prosecution agreement with SNC-Lavalin.

Ms. McLellan wrote in her report released Wednesday that she does not believe “further structural change is required in Canada to protect prosecutorial independence and promote public confidence in the criminal justice system.”

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The report was made public shortly after Ethics Commissioner Mario Dion released his findings into the Prime Minister’s actions. Mr. Trudeau was found to have contravened a section of the Conflict of Interest Act by using his authority over Ms. Wilson-Raybould to press her to overrule the Director of Public Prosecution’s decision not to negotiate a deal with SNC-Lavalin that would avoid criminal prosecution.

Ms. McLellan consulted various experts, including former attorneys-general and government officials, lawyers and academics in Canada, Britain and Australia, to weigh in on the question of dividing the two roles. The attorney-general is the government’s top legal adviser, while the justice minister is a member of cabinet.

Ms. McLellan wrote in her report that the model of having the same person hold both positions was “deliberately chosen at Confederation, and for good reason. Our system benefits from giving one person responsibility for key elements of the justice system.”

She said giving the roles to separate people “would not reduce the potential for conflict in the prosecutorial context in any appreciable way.”

Ms. McLellan made eight recommendations for the file. She said there should be more formal rules about how ministers and their staff take part in discussions and consultations of prosecutions, adding the final decision is the attorney-general’s alone. She wrote that in consultations with experts there was a strong consensus that political staff should not be involved in the substance of the consultations.

She also said the attorney-general should develop a protocol to govern ministerial consultations and said the Public Prosecution Service of Canada Deskbook needs updating. And she recommended attorneys-general explain their reasons when issuing a direction or taking over a prosecution, and wants to see programs created to educate parliamentarians on the role of attorney-general.

At a news conference in Niagara-on-the-Lake, Ont., Mr. Trudeau said he looks forward to “implementing the various recommendations she made because what happened over the past year shouldn’t have happened.”

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Former Attorney-General Jody Wilson-Raybould recorded a Dec. 19, 2018 conversation with Michael Wernick, Clerk of the Privy Council, in which he told her that Prime Minister Justin Trudeau was in “that kind of mood” and wanted the prosecution of SNC-Lavalin to be shelved. The Globe and Mail

Conservative Leader Andrew Scheer dismissed Ms. McLellan’s report as little more than a Liberal smokescreen.

“I was never prepared to give that report any credence,” Mr. Scheer said. “I don’t believe that Canadians are interested in the findings of Liberals who investigate other Liberals.”

Ms. McLellan said in her consultations with experts, the idea the attorney-general would not be able to act independently on prosecutorial matters because of their role as justice minister “was not of concern.”

“The vast majority of those to whom I spoke did not raise the joined roles as an impediment to an independent prosecution, and in the words of several people, splitting the roles for this reason was a ‘solution in search of a problem.’”

With a report from The Canadian Press

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