Attorney general, justice minister should be kept one role: McLellan report

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 should be made.

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 does not believe that splitting the two roles would help to protect prosecutorial independence and 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.”

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“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 lawmaking 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.

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McLellan, however, warned that removing the attorney general from 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.”

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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 better educating parliamentarians, cabinet ministers and their staff on the roles of the attorney general and justice minister — their independence in decision-making about prosecutions and the consequences of interfering with that discretion.

She also recommended the oath of office for future attorneys general be changed to refer specifically to their unique role, and that the name of the Department of Justice add “and Office of the Attorney General of Canada” to its title.

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Trudeau said Wednesday he plans to use McLellan’s report as a guide to “allow us to move forward and make right what obviously didn’t work over the last year as we tried to balance competing interests and fell short, as the ethics commissioner pointed out.”

Conservative Leader Andrew Scheer, on the other hand, dismissed the McLellan report as little more than a Liberal smokescreen.

“I was never prepared to give that report any credence,” Scheer said. “I don’t believe that Canadians are interested in the findings of Liberals who investigate other Liberals.”