The Department of Justice Act creates the Department of Justice, over which the Minister of Justice presides, and sets out the powers, duties and functions of the Minister of Justice and Attorney General of Canada. It provides that the Minister is also Her Majesty’s Attorney General of Canada. The Minister of Justice is the legal member of Cabinet and is responsible for justice policy development, including the development of new programs and services for Canadians. The Attorney General of Canada provides legal services to the Government. The Attorney General also oversees federal prosecutions within the framework of the Director of Public Prosecutions Act and is supported by the Public Prosecution Service of Canada, which is independent from the Department of Justice.
The Minister of Justice has both a policy role and a legal role. As a member of Cabinet – a political and deliberative body – the Minister of Justice exercises their political judgment. As the legal member of Cabinet, the Minister is responsible to see that the administration of public affairs is in accordance with the law, to advise the Crown on legal matters and to uphold the rule of law by providing legal advice, which must be independent and non-partisan.
The Minister of Justice is responsible, in whole or in part, for over 50 federal statutes, including the Criminal Code.The Minister is responsible for advancing policy in areas such as criminal law, youth criminal justice, Indigenous justice, federal family law, human rights law, access to information and privacy law, official languages law and judicial affairs. The Minister ensures that Canada’s national legal framework is bilingual and bijural and that it is not inconsistent with the Canadian Charter of Rights and Freedoms. The Minister is responsible for funding programs that are designed to support Indigenous communities, victims of crime, people with lower incomes, families and young people. The Minister also supports projects that help Canadians understand the law and access the justice system in both official languages.
Because of the important role that the provinces and territories have with respect to the administration of justice, there is considerable collaboration between the Department and provincial and territorial governments with respect to policy development and programs.
The Minister also has some very specific responsibilities. For example, the Criminal Code gives the Minister of Justice the authority to review a conviction to determine whether there may have been a miscarriage of justice. Moreover, the Extradition Act and the Mutual Legal Assistance in Criminal Matters Act give the Minister of Justice responsibility for extradition and mutual legal assistance.
Under section 4.1 of the Department of Justice Act, the Minister must examine every regulation sent to the Clerk of the Privy Council and every government bill introduced in the House of Commons to consider whether it is inconsistent with the Canadian Charter of Rights and Freedoms and report any inconsistency to the House of Commons. No Minister of Justice has ever tabled such a report.
Under section 4.2 of the Department of Justice Act, the Minister must table, in the House of Parliament where the government bill originated, a Charter statement identifying a government bill’s potential effects on the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms.
Furthermore, the Minister of Justice is responsible for a number of independent organizations, referred to collectively as the Justice portfolio, such as the Canadian Human Rights Commission, the Canadian Human Rights Tribunal, the Courts Administration Service and the Administrative Tribunal Support Services of Canada.
The Attorney General is the chief law officer of the Crown. In carrying out this role, the Attorney General represents the Crown and not individual departments or agencies of the Government and, therefore, seeks to protect interests for the whole of government. The Attorney General acts in the public interest, including upholding the Constitution, the rule of law and respect for the independence of the courts. The Attorney General conducts litigation on behalf of the Government and provides legal advice and legislative services to government departments and agencies.
All ministers are expected to ensure that the legal issues and risks associated with proposals being brought forward for Cabinet consideration are clearly identified and fully considered and that the proposals are compliant with the Canadian Charter of Rights and Freedoms. The Attorney General and the Department of Justice provide support to the whole of government in this regard.
Most civil litigation involving the federal government is handled by litigators in the Department of Justice. While other departments generally act as “instructing clients,” the Attorney General ultimately represents the Government of Canada as a whole and not individual departments or agencies. Legal positions and strategies must take account of government-wide considerations that may transcend individual cases. There are often many policy, financial and operational considerations involved in determining what litigation position, among viable legal arguments, should be taken in a particular case. The Attorney General works with other ministers in defining the public interest in civil litigation.
The Attorney General of Canada is also responsible for federal prosecutions. Most functions related to prosecutions are primarily discharged by the Director of Public Prosecutions under the Director of Public Prosecutions Act. The Attorney General and the Director of Public Prosecutions are bound by the constitutional principle that the prosecutorial function be exercised in the public interest and independent of partisan concerns or direction. In assessing the public interest, the Attorney General may, under the “Shawcross Doctrine,” consult with other Cabinet ministers on matters of policy but is not obliged to do so and may not be directed in their decision. The conduct of such ministerial consultations is subject to any guidelines and protocols issued by the Attorney General.
Similarly, the Director of Public Prosecutions and Crown counsel working under the Director of Public Prosecutions often need to consult with officials in government departments and agencies who may have information or expertise that may be relevant to the Director of Public Prosecutions’ determination of whether it is in the public interest to prosecute a case. Consultation ensures that Crown counsel have access to a wide range of viewpoints and information so that their decisions are made with full knowledge of all the circumstances. However, prosecutorial independence means that government departments, including those with investigative authorities, cannot instruct the Director of Public Prosecutions that a certain course of action must be followed. The Office of the Director of Public Prosecutions has issued guidelines to its prosecutors on the conduct of such consultations.
The Director of Public Prosecutions acts as the Deputy Attorney General of Canada in initiating and conducting federal prosecutions on behalf of the Attorney General. Under the Director of Public Prosecutions Act, the Director of Public Prosecutions must notify the Attorney General about important questions of general interest that cases might present.
Under the Act, the Attorney General may issue directives to the Director, which may be general or about specific prosecutions. When a directive is issued, it is published in the Canada Gazette and publicly available to all Canadians. When a general directive is issued, it is preceded by consultation with the Director of Public Prosecutions.
Under the Act, the Attorney General may also, after consulting the Director of Public Prosecutions, assume the conduct of a prosecution. This is also done through a transparent process where the Attorney General must publish a notice of the intent to assume conduct of a prosecution in the Canada Gazette. The Attorney General may also intervene in criminal proceedings on questions of public interest, such as the constitutionality of legislation, with notice to the Director.
The powers of the Attorney General under the Director of Public Prosecutions Act to direct or assume the conduct of a prosecution would be exercised only in exceptional cases. Publishing public notices provides for transparency as well as accountability for the Attorney General in their decision-making.