The former lawmaker asked to recommend whether the roles of attorney-general and justice minister should be separated in the wake of the SNC-Lavalin affair says she is keeping an open mind. But in her view, the dual role has been handled “comfortably” throughout Canada’s history – until now.
“I was two-hatted,” said Anne McLellan, who was attorney-general and justice minister in a Liberal government from 1997 to 2002, in an interview. “I lived with that reasonably comfortably. Others have for 150 years – but that does not mean circumstances don’t change.”
She said getting it right is key to ensuring that Canadians have confidence in the administration of justice. “I think one takes away from the role how central it is to the functioning of good government and democracy.”
Prime Minister Justin Trudeau has given her until June 30, she said, to recommend whether the federal government should maintain the dual roles of attorney-general and justice minister in one person – as has been the case since Confederation – or split them up. The attorney-general is the government’s top legal adviser; the justice minister is a cabinet minister as any other.
Her appointment as the Prime Minister’s special adviser comes after The Globe and Mail reported on Feb. 7 that senior officials in the Prime Minister’s Office pressed then-attorney-general Jody Wilson-Raybould not to prosecute Quebec engineering giant SNC-Lavalin. The Director of Public Prosecutions, Kathleen Roussel, had declined to negotiate an out-of-court settlement, and Ms. Wilson-Raybould refused to use her authority as attorney-general to direct her to do so.
Testimony before the House of Commons justice committee by Ms. Wilson-Raybould and senior government officials revealed that she was pressed more than 20 times over four months, including by the Prime Minister, and held her ground, before being moved in January to Veterans Affairs, from which she resigned.
At the heart of the issue is whether splitting the roles and moving the attorney-general outside cabinet, as is the case in Britain, would insulate the position from political interference. Former Conservative attorney-general and justice minister Peter MacKay said in an interview that it would not, adding that Ms. McLellan’s review is meant merely to “take the heat off the Prime Minister’s Office and give them political cover.
“There’s so much riding on this. The experience of the Gomery inquiry is certainly still ringing in their ears," Mr. MacKay said, referring to the inquiry into the “sponsorship scandal” that contributed to the Liberals’ 2006 election loss.
The experience of Ms. Wilson-Raybould in the SNC-Lavalin affair will be just part of her review, said Ms. McLellan, who also led the government’s task force on cannabis legalization. “We should not be responding to any single situation.”
She said she will also consider her own experience; the views of academics, civil servants and judges with expertise in the area; and the experience of jurisdictions such as Britain and New Brunswick, where the two roles have been separated.
When she was attorney-general, things were a little different. The role of director of public prosecutions did not exist until 2006, when it was created as extra insulation from political influence. But the director’s authority is delegated by the attorney-general, who can issue a public directive allowing him or her to take over a prosecution or steer it in a new direction. Then, as now, the attorney-general was in charge.
And in Ms. McLellan’s own experience as attorney-general and justice minister, there was little tension between the two roles.
“I don’t remember this being an issue,” she said.
She did recall, however, that others did not necessarily understand her role. “I think what’s harder, in my experience, is not wearing the two hats. It’s the people you deal with when you walk into the government lobby or when you talk to opposition members or certain public servants or political staff. You know, they don’t stop and say, ‘Minister, I’m going to talk to you now wearing your A-G hat, so put that one on and take your Minister of Justice hat off.’ That’s not how the real world works.”
Was she ever pressed by others within government on a specific prosecution?
“To the best of my memory, never – and I think I would remember.”
Her name drew derisive laughter from the opposition benches when Mr. Trudeau announced her appointment. Conservative Leader Andrew Scheer asked mockingly whether former Liberal MP Sheila Copps was unavailable – implying that the appointment of Ms. McLellan was partisan.
Ms. McLellan said she sought and received assurances from the Prime Minister’s Office that she can reach independent recommendations, adding: "I wish sometimes that opposition parties of all kinds and all places perhaps conducted themselves with more information and dignity. … I think Mr. Scheer misunderstood my role because I’m not investigating anything or anybody.”