The Duty as Legislative Counsel as Guardians of the Statue Book: Sui Generis or a Professional Duty of Lawyers?

Abstract

Legislative counsel—those who draft legislation for the executive or for legislative assemblies—are largely overlooked in the Canadian legal literature and case law. One respect in which legislative counsel appear to be unique is their duty as guardians or keepers of the statute book. This article argues that this Guardian duty is best understood as a professional duty of legislative counsel as lawyers. In the same way that all lawyers have professional duties as officers of the court, though these duties are most relevant to litigators, all lawyers have professional duties as officers of the statute book, though these duties are most relevant to legislative counsel. All lawyers, when drafting legislation, have particular component professional duties to encourage, discourage, and even refuse certain instructions. The article also considers law-society jurisdiction over legislative counsel, arguing that such jurisdiction is constrained by parliamentary privilege and federalism.