The Attorney General, Politics, and the Public Interest: Contributions to an Evolving Constitutional Convention

Michael Murphy

doi:10.1017/cls.2021.42

Abstract

AbstractThe prosecutorial independence of the Attorney General (AG) is a firmly established constitutional convention in Canada, but it is also an evolving convention, subject to ongoing contestation and debate. This article is a contribution to that debate. It defends a normative constitutional framework wherein the AG’s authority to make final decisions in matters of criminal prosecution is balanced against a corresponding duty to consult with cabinet and the prime minister on the public interest implications of prosecutorial decisions when the circumstances warrant. Within this normative framework, respectful contestation and debate amongst ministers, the prime minister, and the AG in determining the public interest merits of prosecution is welcomed, even encouraged, and if conducted with the requisite integrity, objectivity, and transparency, it is regarded not as a threat but as a valuable check and balance on AG independence and an indispensable form of quality control on the exercise of prosecutorial discretion.

Highlights

In 2019, Prime Minister Justin Trudeau’s Liberal government was pitched headlong into the most serious crisis of its first term in office
The crisis centred around allegations that Trudeau, some of his closest advisors and ministers, and Privy Council Clerk Michael Wernick had pressured Attorney General (AG) Jody WilsonRaybould to help Quebec engineering firm SNC-Lavalin secure a deferred prosecution agreement and avoid criminal charges connected to its past business dealings with the regime of Libyan dictator Muammar Gaddafi.[1]
An independent AG is critical to ensuring that the criminal justice system remains dedicated to serving the public interest and is used neither as a vehicle for advancing the partisan interests of the governing party or their supporters, nor as a weapon for persecuting or punishing political opponents

Summary

Introduction

In 2019, Prime Minister Justin Trudeau’s Liberal government was pitched headlong into the most serious crisis of its first term in office. Are specific to the scandal itself, including the core question of whether, or to what extent, Trudeau and other government officials were guilty of partisan interference in the exercise of prosecutorial discretion.[9] my primary aim in this article is not to stake out a comprehensive position on the propriety of official conduct in the SNC-Lavalin affair but instead to engage with a more general set of questions that have emerged in connection with this narrower debate These include the nature and limits of prosecutorial independence, the appropriate role of cabinet ministers (and the prime minister) in public interest consultations informing the exercise of the AG’s prosecutorial discretion, and where to draw the line between legitimate public interest and improper partisan political considerations in those consultations. 11 See Roach, “The SNC Lavalin Controversy,” 2; Craig Forcese, “Attorney General Independence: The Forgotten Basford Standard and its National Security Nexus,” Intrepid Blogsite, May 1, 2019, https://www.intrepidpodcast.com/blog/2019/4/30/attorney-general-independence-the-forgottenbasford-standard-and-its-national-security-nexus; Bezanson, “Constitutional or Political,” 763; and Rosenberg, “The Attorney General,” 850

The Prosecutorial Independence of the AG in Canada

Ministerial Conduct in Public Interest Consultations

Conclusion