THE ATTORNEY GENERAL'S FORGOTTEN ROLE AS LEGAL ADVISOR TO THE LEGISLATURE: A COMMENT ON SCHMIDT V. CANADA (ATTORNEY GENERAL).

• Author: Martin, Andrew Flavell

INTRODUCTION

The role of the Attorney General and Minister of Justice is, for the most part, settled in Canadian law. The federal Department of Justice Act and corresponding legislation in the provinces and territories set out the core duties of the Attorney General and Minister of Justice. (1) Most importantly, as chief law officer of the Crown she oversees all litigation and legal services for the executive and provides legal advice to the Cabinet. (2) She is simultaneously the minister responsible for the justice system itself. (3) However, she also "is entrusted with the powers and charged with the duties that belong to the office of the Attorney General of England by law or usage, in so far as those powers and duties are applicable to Canada". (4) While this last provision may appear arcane, and some may assume it adds nothing to the other enumerated duties, lawyers and judges overlook it at their peril. Indeed, the recent case of Schmidt v Canada (Attorney General) demonstrates that this provision can be forgotten, relevant, and problematic all at the same time. (5)

In Schmidt, the Federal Court of Appeal interpreted a series of provisions in the Canadian Bill of Rights (6) the Department of Justice Act, (7) and the Statutory Instruments Act (8) These provisions require the Minister of Justice to assess government bills and proposed regulations and inform the House of Commons if they are "inconsistent with the purposes and provisions of" the Bill or the Canadian Charter of Rights and Freedoms (9) (Under the Statutory Instruments Act, it is instead the Clerk of the Privy Council in consultation with the Deputy Minister of Justice who makes this determination for proposed regulations and communicates it to the regulation-maker.) (10)

Edgar Schmidt, a lawyer for the Department of Justice, argued that the threshold used to trigger the reporting obligation--"when no credible argument can be made that the proposed legislation meets these standards"--was too high. (11) He sought a declaration that the correct threshold was "more likely than not inconsistent". (12) The Federal Court of Appeal, affirming and largely adopting the decision of the Federal Court, refused the declaration.

Both Stratas JA for the Federal Court of Appeal and Noel J in Federal Court relied, in part, on a separation of powers argument. They stated that the Attorney General and Minister of Justice is not a legal advisor to Parliament, and that if Parliament desires an opinion on the Charter compliance of government bills and regulations then Parliament should retain its own lawyer:

It is no part of the formal job of the Minister of Justice and the Attorney General of Canada to give legal advice to Parliament regarding whether or not proposed legislation is constitutional. Neither the Minister of Justice nor the Attorney General of Canada are legal advisors to Parliament. (13) In making this characterization, both Stratas JA and Noel J engaged in a misinterpretation of the Department of Justice Act that overlooked a relevant statement by the Supreme Court of Canada in Krieger [upsilon] Law Society of Alberta. (14) This misinterpretation and oversight led to a conclusion that, with respect, is erroneous: that the Attorney General is not a legal advisor to the House of Commons.

In law--if not in reality--the Attorney General is a legal advisor to the House of Commons. This role is not just forgotten, it is inherently problematic. The problem arises because the Attorney General is in a joint retainer, providing legal advice to both the executive and the House of Commons, but is unable (for reasons I will explain below) to meet the ethical requirements of a joint retainer. However, this problem does not justify, and cannot effect, a judicial elimination of that role.

The decision in Schmidt presents an opportunity to examine this forgotten role, in order to resolve its problem or to recommend its proper elimination. To carry out this examination, this case comment proceeds in four parts. In Part I, I set out the provisions at issue in Schmidt and situate the Attorney General's role in the context of the reasons of the Federal Court and the Federal Court of Appeal. In Part II, I demonstrate how a proper interpretation of the Department of Justice Act and Krieger would recognize the Attorney General's role as legal advisor to the House of Commons. In Part III, I identify the problem inherent in this role and canvass the appropriate legal mechanisms by which to modify or eliminate this role. I then conclude by reflecting on the implications for the decision in Schmidt and for the role of the Attorney General.

1. THE DECISION IN SCHMIDT V CANADA (ATTORNEY GENERAL)

   In this part, I set out the provisions at issue and canvass the reasons of Noel J and Stratas JA in Schmidt as context for my argument. I begin with the reasons of Noel J, as they were largely adopted by Stratas JA.

   1. THE CHALLENGED PROVISIONS

      Subsection 4.1 (1) of the Department of Justice Act provides that:

      Subject to subsection (2), the Minister [of Justice] shall, in accordance with such regulations as may be prescribed by the Governor in Council, examine every [proposed] regulation... and every [government] Bill... in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Minister shall report any such inconsistency to the House of Commons at the first convenient opportunity. (15) Similarly, subsection 3(1) of the Bill of Rights provides that:

      Subject to subsection (2), the Minister of Justice shall, in accordance with such regulations as may be prescribed by the Governor in Council, examine every [proposed] regulation... and every [government] Bill... in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of this Part and he shall report any such inconsistency to the House of Commons at the first convenient opportunity. (16) Subsection 4.1 (2) of the Department of Justice Act and subsection 3(2) of the Bill of Rights provide an exception for proposed regulations that have been examined under section 3 of the Statutory Instruments Act for inconsistency with the Charter and the Bill of Rights, respectively. That section provides that "the Clerk of the Privy Council, in consultation with the Deputy Minister of Justice, shall examine the proposed regulation to ensure that", among other things, "it does not trespass unduly on existing rights and freedoms and is not, in any case, inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights" and advise the regulation-making authority if it is inconsistent. (17)

   2. THE REASONS OF NOEL J OF THE FEDERAL COURT

      Justice Noel organized his substantive analysis into three parts: plain meaning, (18) legislative intent, (19) and context. (20)

      Justice Noel's plain meaning analysis focused on the terms "ascertain" / "rechercher", "whether" / "si", and "inconsistent" / "incompatible" and the phrases "shall report" / "fait rapport" and "such inconsistency" / "toute incompatibilite". (21) He concluded that a binary determination, and only a binary determination, is required:

      [T]he Minister is requited to identify, with certainty, whether the result of her examination identifies present inconsistencies in any of the provisions under study, with any tights guaranteed by the Bill of Rights or the Charter... if the Minister, in her own examination, considers that an argument of a serious and professional nature exists, showing that the provisions under study are in conformity with guaranteed rights, she cannot ascertain not conclude that there exists an inconsistency with the fights protected by the Bill of Rights and the Charter. (22) Schmidt's proposed threshold, "more likely than not inconsistent", (23) conflicted with this textual interpretation. (24)

      Justice Noel's legislative history analysis concluded that "the intent of the legislator... was consistent and properly reflected in the ordinary meaning approach." (25) He also concluded that legislators were aware that the obligation to report would likely prompt the Minister of Justice to resign instead of making such a report:

      The ultimate result of the duty to report, the Minister of Justice's resignation from Cabinet, was conceptualized to be of a political nature

      ... At the time, this remedy was considered a significant tool of persuasion and remained so for the years to come. (26) The focus in the third part of Justice Noel's analysis--context--was on the respective roles of the judiciary, the executive, and Parliament. Justice Noel considered these roles in detail, supplemented by comparisons to the United Kingdom and Australia, (27) and including the process within the executive by which government bills are designed. (28) The crux of Justice Noel's separation of powers analysis is that if Parliament wants legal advice on bills, it should retain its own lawyers to provide that advice instead of improperly relying on a member of the executive who is not its lawyer. Given its importance to my argument, I include this passage in full:

      And herein lies a key aspect of this case: to each its own responsibilities. Parliament is expected to assume its obligations to examine bills and debate issues that may affect guaranteed rights. Parliament must not place its duties on the shoulders of the other branches, notably on those of the Minister of justice. The Minister of Justice is not Atlas, carrying the world of guaranteed rights on her shoulders. As described above, the Minister of Justice has statutory obligations to examine draft legislation and to report to Parliament if she ascertains that an inconsistency with guaranteed rights exists at the end of the Executive's role in shaping draft legislation. The Minister of Justice assumes these responsibilities as a member...