The West entrance to Justice Building is pictured in Ottawa on Feb. 22, 2019.Blair Gable/The Globe and Mail
Just blame Sir John A. Macdonald for the political controversy now swirling through Ottawa.
It was Canada’s first Prime Minister who fused the jobs of attorney-general and minister of justice under one office, endowing the role with a tension that erupted into full public view during Jody Wilson-Raybould’s testimony before the House of Commons justice committee on Wednesday.
“The two hats that the minister of justice and the attorney-general wears here in our country are completely different," she said, “and I think there would be merit to talking about having those as two separate individuals.”
The pressure within the job comes from its sometimes contradictory demands. The minister of justice is expected to sit in cabinet and provide confidential policy advice – an inherently political job. The attorney-general is the country’s chief law officer, responsible for conducting litigation and upholding the rule of law, the Constitution and courts – a position requiring independence from politics.
In Ms. Wilson-Raybould’s case, she said Prime Minister Justin Trudeau and his office placed “inappropriate” and sustained political pressure on her to save SNC-Lavalin from a trial that could damage the Liberals’ fortunes in Quebec, infringing on her role as attorney-general to uphold prosecutorial discretion.
The sometimes contrary aims of those two roles has weighed heavily on former office holders as well.
“There were times when I would oppose a decision of cabinet in confidence and then be obliged to show support for the decision outside of cabinet, out of cabinet solidarity − and because of solicitor-client privilege, I could not even say that I had opposed it,” said Irwin Cotler, who served in the position under then-prime minister Paul Martin between 2003 and 2006. “It created awkward situations.”
Mr. Cotler recommended splitting the office but that idea gained little traction.
“What is happening now in the case of former minister of justice Jody Wilson-Raybould, to me, demonstrates why this recommendation of dividing the two should be taken seriously,” he said. “There is an inherent tension between the dual roles of the minister of justice and the attorney-general.”
The twin functions created not just tension for Mr. Cotler, but confusion among his colleagues. He said his fellow cabinet members occasionally pressed him on certain issues as a fellow political member without appreciating the nuances of the attorney-general role.
“It’s part of the psycho-social dynamics of the office,” he said. “They see the minister of justice wearing a political hat and don’t necessarily appreciate that [that individual] wears a legal hat as well.”
Mr. Cotler would prefer to see the attorney-general hived off and occupied by someone who doesn’t sit in cabinet, as is the case in Britain. But unlike in that country, where the post is still held by a parliamentarian, Mr. Cotler wants it to become a bureaucratic function.
In that respect, the setup would more closely mimic Ireland or Israel, where the attorney-general is a public-service position held by someone who can appear before cabinet.
But historians and political scientists say it would be naive to think that politics can be removed from the creation and administration of law.
In 2007, Britain’s attorney-general faced accusations of political interference when he ordered the country’s fraud office to stop investigating defence contractor BAE on corruption allegations for reasons of “national security.”
“Having the attorney-general sit outside cabinet hasn’t been a panacea elsewhere,” said Matthew Hennigar, a political-science professor at Brock University who co-wrote a 2012 academic article supporting a division of the two roles.
Only one previous Canadian federal government has taken a serious stab at bifurcating the roles: Alexander Mackenzie’s government in 1878. Its bill died in the Senate.
“That’s the last time we could find that there was any debate on whether it’s appropriate to fuse these two offices," said co-author James Kelly, political science professor at Concordia University. “It could be that these issues don’t normally become public conflicts because of cabinet confidentiality."
According to historian Jonathan Swainger, it was no fluke that the first prime minister created an office that has bedevilled his successors. At the time, he was divvying out rights and responsibilities in a fluid new country. Law and political strategy were enmeshed.
"John A. Macdonald really believed that the best way to run a country was with understandings between gentleman politicians,” said Dr. Swainger, history professor at the University of Northern British Columbia and author of The Canadian Department of Justice and the Completion of Confederation. “He believed in getting together in a smoky room and talking turkey and sorting things out. Recent events suggest these conversations haven’t changed much.”
Patrick White