THE BLOG
03/05/2019 15:54 EST | Updated 03/05/2019 15:57 EST

Separate Attorney General And Justice Minister Roles, For Canada's Own Good

A conflict of interest inherent to Jody Wilson-Raybould's position fuelled the SNC-Lavalin scandal.

The SNC-Lavalin scandal has exposed more than just a few cracks in our federal Liberal party; it has rocked some of Canadians' most basic assumptions about our parliamentary structure and has left many — including the current justice minister — asking what, if any, role the minister of justice should continue to serve in this country.

In her testimony before the House justice committee last week, the former minister, who was also attorney general, delivered one bombshell after another. In no uncertain terms, Jody Wilson-Raybould told members of Parliament that she experienced undue political pressure in exercising her discretion as attorney general in relation to the ongoing federal prosecution of Montreal-based construction giant SNC-Lavalin.

LARS HAGBERG via Getty Images
Former Canadian Justice Minister Jody Wilson-Raybould arrives to give her testimony about the SNC-Lavalin affair on Feb. 27, 2019.

Freed from the binds of cabinet and solicitor-client privilege, she described conversations, text messages and other correspondence with high-ranking members of the Liberal party, including the prime minister. She characterized it as "inappropriate" in nature.

In summary, Wilson-Raybould said that she felt ongoing, undue pressure to interfere in the criminal proceedings against SNC-Lavalin. She said that she was urged to consider the consequences of such proceedings, including the very real possibility that the company would leave Montreal altogether if prosecuted, in turn causing massive job loss and potentially affecting election results.

Given that the minister of justice role is premised upon independence, her testimony was troubling to say the least. After all, we expect that the minister of justice is to act as an attorney general disconnected from political considerations. The independence of this office is one of the elements at the very foundation of our parliamentary system.

Wilson-Raybould's testimony therefore raises serious concerns about the inner culture of our presiding government. As a key government adviser — and now a minister — step down, these concerns point to a culture that appears to be unethical.

Indeed, the Liberal party is in trouble.

Many, including Conservative party leader Andrew Sheer, have called for Trudeau's resignation. It appears that many Canadians are quickly losing faith in our government's affairs.

But the problem here goes well beyond one particular political party's practice. At its very core, this problem is one of structure. It is a problem of duality.

The justice minister is expected to be responsible for developing legal policy and legislation on behalf of the Justice Department, which is a deeply political role, while also providing legal advice to the executive branch of our government and representing it in legal proceedings.

Between these duties, the potential for conflict of interest is rife, and so long as the roles of justice minister and attorney general are conflated, independence from political considerations is a mirage.

As an elected member of Parliament, the role of the justice minister is, by definition, political; and beyond this, it is politically partisan to an astounding degree. It would not only be naive, but politically illiterate, to believe that any elected member of Parliament — no matter what their post — is free from political concerns.

The problem here goes well beyond one particular political party's practice.

As an elected member of Parliament, the justice minister must consider constituent concerns, re-election issues and key civic issues as they arise. The nature of the position itself dictates that it is to remain undivorced from political duties. It is politically invested.

Even Wilson-Raybould herself addressed this concern before the House of Commons, when delivering her now infamous testimony. She told members of Parliament the "two hats" of justice minister and attorney general are "completely different" and that there may be merit in creating two separate and distinct roles for them in the future. Current Justice Minister David Lametti appears to agree.

The conversations that Wilson-Raybould recounted were strategic political conversations. They were centered on strategic political considerations that all governments must face.

Changing government, dismissing leaders or shuffling the cabinet will not solve the core issue. Structural change is necessary.

THE CANADIAN PRESS/Adrian Wyld
A number of former federal and provincial attorneys general — including even the new federal justice minister David Lametti — are publicly musing about whether Canada should consider separating the office of the attorney general from the ministry of justice in the wake of the SNC-Lavalin controversy.

This is something that our fellow Brits realized years ago. Although the office is still political in nature, it is not nearly as entangled as its Canadian counterpart.

There, the office of the attorney general exists outside of cabinet, and the attorney general is a non-cabinet minister. Although accountable to Parliament, the attorney general is not accountable to voters in the same way that the Canadian minister of justice is.

This creates far less convoluted system, and one that is less susceptible to corruption.

When you consider that we inherited our parliamentary system from England, it makes no sense for us to have developed such a conundrum in our country. In fact, there is no practical reason, beyond tradition, that the role of attorney general and justice minister must be fused together in Canada.

To say that it should remain this way, as it has always been this way, is an unsatisfactory response to an increasingly troubling problem.

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So, while it is tempting to place blame on the government and particular government officials in the wake of any political scandal, it may be wiser to take this opportunity to review our governmental structure and address underlying issues that have the potential to plague our country's prestige.

The proper first step should be to untangle the role of justice minister from that of the attorney general; and although the political storm may continue to rain down even after that, at least our officials will finally know which umbrella to stand under.

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