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The Attorney General has a unique role to play as a Minister.
One part of the Attorney General's role is that of a Cabinet Minister. In this capacity the Minister is responsible for representing the interests and perspectives of the Ministry at Cabinet, while simultaneously representing the interests and perspectives of Cabinet and consequently the Government to the Ministry and the Ministry's communities of interest.
The Attorney General is the chief law officer of the Executive Council. The responsibilities stemming from this role are unlike those of any other Cabinet member. The role has been referred to as "judicial-like" and as the "guardian of the public interest".
Much has been written on the subject of ministerial responsibilities and the unique role of the Attorney General.
There are various components of the Attorney General's role. The Attorney General has unique responsibilities to the Crown, the courts, the Legislature and the executive branch of government. While there are different emphases and nuances attached to these there is a general theme throughout all the various aspects of the Attorney General's responsibilities that the office has a constitutional and traditional responsibility beyond that of a political minister.
The statutory responsibilities of the office are found in
section 5 of the Ministry of the Attorney General Act.
Section 5 states:
The Attorney General,
(a) is the Law Officer of the Executive Council;
(b) shall see that the administration of public affairs is in accordance with the law;
(c) shall superintend all matters connected with the administration of justice in Ontario;
(d) shall perform the duties and have the powers that belong to the Attorney General and Solicitor General of England by law and usage, so far as those powers and duties are applicable to Ontario, and also shall perform the duties and powers that, until the Constitution Act, 1867 came into effect, belonged to the offices of the Attorney General and Solicitor General in the provinces of Canada and Upper Canada and which, under the provisions of that Act, are within the scope of the powers of the Legislature;
(e) shall advise the Government upon all matters of law connected with legislative enactments and upon all matters of law referred to him or her by the Government;
(f) shall advise the Government upon all matters of a legislative nature and superintend all Government measures of a legislative nature;
(g) shall advise the heads of ministries and agencies of Government upon all matters of law connected with such ministries and agencies;
(h) shall conduct and regulate all litigation for and against the Crown or any ministry or agency of government in respect of any subject within the authority or jurisdiction of the Legislature;
(i) shall superintend all matters connected with judicial offices;
(j) shall perform such other functions as are assigned to him or her by the Legislature or by the Lieutenant Governor in Council. "
What follows is an overview of the various components of the Attorney General's roles and responsibilities, primarily as outlined in the Act.
The role of chief law officer might be referred to as the Attorney General's overall responsibility as the independent legal advisor to the Cabinet - and some have even suggested that the role possibly extends to the Legislature as well. The importance of the independence of the role is fundamental to the position and well established in common law, statutes and tradition.
As chief law officer, the Attorney General has a special responsibility to be the guardian of that most elusive concept - the rule of law. The rule of law is a well established legal principle, but hard to easily define. It is the rule of law that protects individuals, and society as a whole, from arbitrary measures and safeguards personal liberties.
The Attorney General has a special role to play in advising Cabinet to ensure the rule of law is maintained and that Cabinet actions are legally and constitutionally valid.
In providing such advice it is important to keep in mind the distinction between the Attorney General's policy advice and preference and the legal advice being presented to Cabinet. The Attorney General's legal advice or constitutional advice should not be lightly disregarded. The Attorney General's policy advice has the same weight as that of other ministers.
One of the most publicly scrutinized aspects of the Attorney General's role is the responsibility for criminal prosecutions encompassed in section 5 (d) and s. 92 of the Constitution Act, 1867. Section 92 gives the provinces authority to legislate in matters related to the administration of criminal justice and thereby gives the provincial Attorney General authority to prosecute offences under the Criminal Code.
The Attorney General does not, however, direct or cause charges to be laid. While the Attorney General and the Attorney General's agents may provide legal advice to the police, the ultimate decision whether or not to lay charges is for the police. Once the charge is laid the decision as to whether the prosecution should proceed, and in what manner, is for the Attorney General and the Crown Attorney.
It is now an accepted and important constitutional principle that the Attorney General must carry out the Minister's criminal prosecution responsibilities independent of Cabinet and of any partisan political pressures. The Attorney General's responsibility for individual criminal prosecutions must be undertaken - and seen to be undertaken - on strictly objective and legal criteria, free of any political considerations. Whether to initiate or stay a criminal proceeding is not an issue of government policy. This responsibility has been characterized as a matter of the Attorney General acting as the Queen's Attorney - not as a Minister of the government of the day.
This is not to suggest that decisions regarding criminal prosecutions are made in a complete vacuum. A wide range of policy considerations may be weighed in executing this responsibility, and the Attorney General may choose to consult the Cabinet on some of these considerations. However any decisions relating to the conduct of individual prosecutions must be the Attorney General's alone and independent of the traditional Cabinet decision making process. In practice, in the vast majority of cases, these decisions are made by the Attorney General's agents, the Crown Attorneys.
An important part of the Crown's - and thus the Attorney General's - responsibility in conducting criminal prosecutions is associated with the responsibility to represent the public interest - which includes not only the community as a whole and the victim, but also the accused. The Crown has a distinct responsibility to the court to present all the credible evidence available.
The responsibility is to present the case fairly - not necessarily to convict. This is a fundamental precept of criminal law, even if it is not a particularly well-understood concept among the general public. One of the Attorney General's responsibilities in fostering public respect for the rule of law, is to assist the public in understanding the nature and limits of the prosecutorial function.
Ultimately the Attorney General is accountable to the people of the province, through the Legislature, for decisions relating to criminal prosecutions. Such accountability can only occur, of course, once the prosecution is completed or when a final decision has been made not to prosecute. The sub judicae rule bars any comment on a matter before the courts that is likely to influence the matter. The sub judicae rule strictly prohibits the Attorney General from commenting on prosecutions that are before the courts. Given the stature of the Attorney General's position, any public comment coming from the office would be seen as an attempt to influence the case.
Although the Attorney general can become involved in decision-making in relation to individual criminal cases, such a practice would leave the Minister vulnerable to accusations of political interference. Accordingly, it is traditional to leave the day-to-day decision-making in the hands of the Attorney General's agents, the Crown Attorneys, except in cases of exceptional importance where the public would expect the Attorney General to be briefed.
The Attorney General has broad responsibilities associated with Government legislation. These responsibilities have been described as twofold. One is to oversee that all legislative enactments are in accordance with principles of natural justice and civil rights (see also s. 5(b) above). This is obviously an important and broad area of responsibility. The second aspect of this responsibility is to advise on the constitutionality and legality of legislation.
The Attorney General's legislative responsibilities are played out in a variety roles. The Office of Legislative Counsel reports to the Attorney General. Legislative Counsel plays a key role in ensuring the legal integrity of Government legislation. Although the Legislative Counsel's reporting relationship to the Attorney General does allow the Attorney General to provide guidance and set standards, individual pieces of legislation are drafted on instructions from client ministries and are not within the sole control of Legislative Counsel or the Attorney General. It should also be noted that Legislative Counsel also has a direct responsibility to the Legislature as the Office also drafts all private member's bills.
The Attorney General has a further role to play as part of whatever Cabinet Committee is formed to review legislation and regulations. Here the Minister has an opportunity to comment on the technical issues related to legislation and regulations prior to Cabinet consideration.
The Attorney General's role on legislative matters is as an adviser to the Cabinet. Although unlikely, Cabinet could, in theory, receive the Attorney General's legal opinion on legislation and choose to disregard it. The Attorney General's role is not independent of Cabinet decision making as in the area of criminal prosecutions. As was noted earlier, the Attorney General must make careful distinctions about the legal opinions and policy or political preferences being offered about legislation.
In addition to the specific responsibilities to conduct civil litigation on behalf of the Government and its agencies (s. 5(h)), the Attorney General has broader litigation responsibilities flowing from the historical powers of the Attorney General referred to in s. 5(d) of the Act. These powers are based on the Crown's parens patriae (parental) authority. The Attorney General's authority, therefore, is not only to conduct litigation in cases directly affecting the government or its agencies but also to litigate cases where there is a clear matter of public interest or public rights at stake.
This has been characterized as a constitutional responsibility to ensure that the public interest is well and independently represented. It may involve interventions in private litigation or Charter challenges to legislation, even if the arguments conclude that the legislation does contravene constitutionally protected rights.
A key component of the Attorney General's responsibilities to ensure the administration of justice in the province is the administration of the courts and as a result the responsibility for maintaining liaison with the judiciary.
Given the fundamental importance of the independence of the judiciary, the responsibility for courts administration is often a very sensitive and delicate issue. Great care and respect for the principles of judicial independence must be exercised in this area.