Keep justice, AG one role: McLellan
Report says splitting the two duties would not help promote public confidence
OTTAWA — The former Liberal cabinet minister tasked with looking into whether the roles of justice minister and attorney general should be separated is recommending no structural changes.
Anne McLellan was enlisted by Prime Minister Justin Trudeau to examine the possibility of splitting the two roles in the federal cabinet in light of concerns raised by former justice minister Jody Wilson-Raybould as part of the SNC-Lavalin affair.
The Prime Minister’s Office released McLellan’s findings Wednesday afternoon, just hours after ethics commissioner Mario Dion’s report concluded that Trudeau violated the Conflict of Interest Act by pressuring Wilson-Raybould to halt the criminal prosecution of the Montreal engineering firm.
In her report, McLellan said she doesn’t believe splitting the two roles would help protect prosecutorial independence or promote public confidence in the criminal justice system.
Creating the dual role was a deliberate choice when Canada was formed at Confederation for “good reason.”
“Our system benefits from giving one person responsibility for key elements of the justice system,” McLellan writes.
“That person gains a perspective over the entire system which could not be achieved if the roles were divided — so, too, do the lawyers and policy experts who work together in the Department of Justice.”
In Canada’s parliamentary system, the justice minister is a political executive who answers to the prime minister, in charge of a federal department with major law-making responsibilities.
The attorney general is an independent legal officer with final authority on how to handle prosecutions through the Public Prosecution Service of Canada and a duty to keep partisan concerns out of those decisions.
Wilson-Raybould’s position holding both jobs during the SNC-Lavalin affair was a key part of the controversy over whether Trudeau and other senior officials pushed her too hard to help SNC-Lavalin avoid a criminal prosecution over allegedly corrupt business dealings.
In her explosive testimony before the Commons justice committee in March, Wilson-Raybould noted the two roles are separate in the United Kingdom. Both offices are held by politicians but the attorney general doesn’t sit in cabinet. She encouraged government to study the merit of replicating such a system in Canada.
McLellan, however, warned that removing the attorney general from federal cabinet could affect the credibility and quality of legal advice that person provides to others who sit around the table.
“In my view, cabinet colleagues are more likely to pay attention to the attorney general’s legal advice because they know that the attorney general, as a member of cabinet, understands the political context in which they are operating. That advice is also likely to be better informed, and therefore more helpful to cabinet.”
She made a special point to highlight that her report was not intended as an inquiry into the SNC-Lavalin affair, but did say she was mindful the review was sought in light of a “perceived absence of clarity” on the relationship between the government and Wilson-Raybould on the matter.
McLellan delivered eight recommendations, mainly aimed at better delineating appropriate conduct for ministers when consulting with attorneys general, as well as better educating parliamentarians, cabinet ministers and their staff on the roles of the attorney general and justice minister, specifically their independence in decision-making about prosecutions and the consequences of interfering with that discretion.