Gil McKinnon: Canada needs an independent, non-political attorney general

Credit to Author: Gordon Clark| Date: Wed, 11 Sep 2019 01:00:44 +0000

The report by special advisor Anne McLellan, a former federal justice minister, that Prime Minister Justin Trudeau commissioned in the wake of the SNC-Lavalin affair concluded that it was not necessary to split the dual portfolios of justice minister and attorney general to “protect prosecutorial independence and promote public confidence in the criminal justice system.”

I disagree.

McLellan’s main recommendations are to (1) enact a “detailed protocol” to govern ministerial consultations with the attorney general on specific prosecutions and (2) educate parliamentarians on the independent role of the attorney general.

Implementing these changes within the current system will not restore public confidence. Nor will it be restored by a change of government.

A fundamental reform is called for — the appointment of an independent, non-political attorney general accountable to Parliament.

A principle that flows from the rule of law is that governments are prohibited from using the criminal justice system — courts, police, prosecutors — to enhance their electoral prospects, favour their friends (donors) or punish their adversaries.

No prime minister would phone a chief judge to ask a trial judge to impose a fine rather than imprisonment. Nor would any politician phone the commissioner of the RCMP to ask an inspector to terminate an investigation.

However, the prime minister claims, even today, that in discharging his responsibilities to Canadians on public policy, he and his underlings are entitled to initiate and pursue discussions with the attorney general (who is also the minister of justice) to reverse a prosecutorial decision.

Why the difference? It lies in the dual portfolios’ inherent conflict of interest that gives rise to erroneous expectations on the part of some cabinet ministers and officials.

The justice minister is partisan — loyal to the party, caucus, cabinet and the prime minister. Assertive independence is neither anticipated nor rewarded. The minister is expected to be a team player who will “fall in line” for the sake of the government’s priorities, policies and re-election.

In contrast, the attorney general cannot be on the government’s team. The attorney, who is ultimately responsible for federal prosecutions and appeals, is constitutionally required to act solely in the public interest and independently from political interests. 

The former attorney general understood her duties on the SNC-Lavalin file.

It is not at all clear that the prime minister, finance minister, ministerial staff and clerk of the privy council grasped the full implications of the attorney general’s mandate to exercise her prosecutorial discretion independently of the government’s agenda. Repeatedly advancing an argument supposedly based on potential job losses reflects their sense of entitlement to obtain a favourable decision from a team member. Their perceived right to pressure the attorney general is emboldened when the attorney serves in cabinet at the pleasure of the prime minister.

Critical safeguards to independent decision-making — whether by judges, prosecutors or police — are tenure and the absence of relationships which provide easy access to, and familiarity with, the decision-maker. These safeguards are glaring deficiencies in the current system. 

These defects could be remedied by (1) creating a separate, independent attorney general’s office accountable to Parliament through an all-party-standing committee; (2) appointing a tenured, non-partisan lawyer as attorney general (who would not sit in cabinet) for a non-renewable, seven-year term; (3) limiting the attorney general’s responsibilities to overseeing the federal prosecutions and appeals currently handled by the Public Prosecutions Service of Canada; and (4) designating the justice minister in cabinet to provide legal advice to government and represent it in civil proceedings.

Canada made a significant step toward greater prosecutorial independence and accountability when it passed the Director of Public Prosecutions Act in 2006. It is time to take that reform one step further.

Gil McKinnon is a retired B.C. barrister who practised criminal law for more than 40 years, both as prosecutor and defence counsel.

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