The time has come to begin seriously considering whether to separate the long-fused offices of Attorney General and Minister of Justice. The Attorney General is responsible for providing legal advice to the executive branch of government and for representing the government in all legal proceedings. In certain matters, the Attorney General is supposed to act completely independently in the public interest without reference to partisan politics. The Attorney General is known as the “defender of the Rule of Law” and indeed, under federal and provincial legislation, the AG is charged with seeing “that the administration of public affairs is in accordance with the law.” Conversely, the Minister of Justice, as the name suggests, is the Minister responsible for the Justice portfolio, developing policy and drafting legislation for this area.

All but one Canadian jurisdiction fuse the two different responsibilities into a single portfolio “Minister of Justice and Attorney General”. Some provinces have dropped one of the titles (In Ontario, she is simply the Attorney General; in Alberta, Prince Edward Island, and Nunavut, Northwest Territories, and the Yukon, the Minister of Justice). Only New Brunswick seems to have separated the Attorney General from the Minister of Justice. In some cases, the Minister of heads a “super Justice Ministry”, combining oversight of cops, Crowns and courts (which presents other challenges).

The fusion of the two roles has often been defended as ensuring that the Attorney General has a voice at the cabinet table in discussions of public policy but that seems to support the cabinet status of the Attorney General rather than its combination with another ministerial portfolio such as Justice. To quote the authoritative Fiddler on the Roof, it seems that the best explanation is tradition!

Thus, I was surprised to recently learn that in the United Kingdom, from whom we inherited the office of the Attorney General, the Attorney General and the Minister of Justice (Lord Chancellor and Secretary of State for Justice) are two separate positions. The Minister of Justice is a member of Cabinet while the Attorney General is not; although the latter does attend cabinet. The British position would seem to undercut our Canadian arguments about the efficacy of the fusion of the two offices.

In Israel, the division is even more profound. The Minister of Justice is a member of cabinet while the Attorney General is an independent, non-partisan lawyer whose legal advice is binding on the government.

A number of other factors have led me to raise this issue.

First, as I have previously written, the decline of lawyers in politics has led to it becoming increasingly common to appoint a non-lawyer as Attorney General and Minister of Justice. While it is constitutionally permissible, it is highly problematic to have a non-lawyer serve as the chief dispenser of legal advice to the executive branch of government.

Conversely, there is no more a problem with a non-lawyer serving as Minister of Justice than there is in having a non-doctor as Minister of Health or a non-teacher as Minister of Education. This is because this person is responsible for the development and implementation of government policy in their area, not for providing medical or teaching services.

Second, the recent attack by the Harper Government on the Supreme Court, specifically on the integrity of Chief Justice McLachlin, has also given me reason to pause. This is because Minister of Justice and Attorney General of Canada Peter MacKay not only failed to defend the Supreme Court, he actively participated in the drive by smearing of the Chief Justice of Canada. This episode has stained the office of the Attorney General of Canada and is an embarrassment for the highly professional federal Department of Justice. I doubt that history will look kindly on the actions of the Attorney General/Minister of Justice in this instance.

Finally, some jurisdictions have already hived off the chief prosecutorial functions in several jurisdictions including the federal, British Columbia, Nova Scotia and Quebec. Maybe the time has come to start thinking about doing the same for the responsibilities of the Attorney General.

I know one thing. I need to spend some of my sabbatical investigating New Brunswick and learning about how the separate responsibilities of the Attorney General and of the Minister of Justice work there.