A Point Well-Taken. The Hopeless Position When an Attorney-General is Also Justice Minister

Ottawa U. Faculty of Law dean, Adam Dodek, hits the nail squarely on the head - it's nigh impossible and fraught with conflicts to appoint one person to serve as both Attorney General and minister of justice.

...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. 

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. ...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.

...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?

...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.

Dodek presents a sensible argument. He convincingly makes the case for fixing a mistake we've been living with since 1868, just one year after Confederation. If not now, then when?