107. The Role of The Attorney General

Below is quoted from Ontario online Government Text. This Blogger has emboldened certain text.

Roles and Responsibilities of the Attorney General

• 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.

Chief Law Officer of the Executive Council (s. 5(a))

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.

Criminal prosecutions (s.5(d))

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.

Legislative Responsibilities (s. 5(e) and (f))

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.

Civil Litigation (s.5(h) and (d))

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.

Responsibility for Court Administration (s. 5(c))

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.

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