Possibilities Under a Non-Lawyer AG in Ontario

Although it may seem as an inconsistency, the Attorney General in Ontario need not be an attorney in that jurisdiction.

With the announcement of Caroline Mulroney as the AG in Ontario this week, this possibility is now a reality. Ms. Mulroney holds an American law degree and was licensed in New York State, but is not a licensee in Ontario.

The validity of a lawyer functioning in this role was resolved several years ago in Askin v. Law Society of British Columbia, which Adam Dodek summarized on Slaw here, where the court held,

[27] To conclude that only persons entitled to practice law qualify for the appointment as Attorney General would impermissibly constrain the Crown prerogative of ministerial appointment exercised by the Lieutenant Governor and the Lieutenant Governor in Council under ss. 9(1) and 9(2) of the Constitution Act.

[29] The prerogative power of the Lieutenant Governor to appoint ministers of cabinet is of constitutional significance, and cannot be removed, replaced, qualified, or extinguished without express legislative language or by necessary implication: Khadr v. Canada (Attorney General)2006 FC 727 (CanLII).

The basis for this decision is that where an enactment requires a certain power to fulfil a specific function, a person appointed to to fulfil this function receives those powers by virtue of other statutes that enable this to occur. The court noted that many individuals who were non-lawyers have filled this role.

Although the Askin decision originates in B.C., the powers of the AG are quite similar under the Ministry of the Attorney General Act. In R. v. Ahmad, the Supreme Court of Canada refers to the Attorney General at para 37 “as the chief law officer of the Crown.”

The Attorney General’s website states:

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”.

In other words, the quickest way to become a Law Officer – though certainly not the easiest – is to skip law school, avoid the bar exam entirely, and “just” get elected and appointed as AG. Yes, this individual does provide independent legal advice to Cabinet and even the legislature, and theoretically can do so without being a lawyer.

As Andrew Martin notes in the Canadian Bar Review, this particular officer of the law would be immune from jurisdiction by the law society, especially where they are not a lawyer, and would be immune from the Rules of Professional Conduct pertaining to the lawyer in public office (R 7.4 in the Model Code).

Martin also examines a separate issue in the Dalhousie Law Journal, of the obligations of confidentiality for an Attorney General who has resigned from cabinet, also touched on by Dodek. Given the political context in which all Cabinet members are appointed, public interest and scrutiny of resignations is not atypical, but rife with problems for an AG.

However, an Attorney General exercises many legislative duties beyond providing legal advice to the government. They must oversee legislative enactments in accordance with the law, is responsible for criminal prosecutions, and conducts civil litigation on behalf of the government.

Given the independence of the AG among cabinet members, they are typically expected to resign where Cabinet interferes with the AG’s exercise of the prosecution function or where Cabinet rejects legal advice that a bill or action would be unconstitutional. With the lack of regulatory jurisdiction of the law society, this may result in an anomaly where confidentiality is broader than privilege,

…a narrow exception to confidentiality and privilege in these circumstances should be asserted to protect the attorney general’s role as “guardian of the public interest” by allowing him to disclose that Cabinet attempted to influence prosecutorial decisions or rejected his advice of clear unconstitutionality or unlawfulness.

Arguably, this exception should also apply where the attorney general feels it necessary to disassociate himself from conduct by the prime minister or Cabinet that threatens public confidence in the administration of justice. However, this exception would be questionable where Cabinet rejects advice of only probable or possible unconstitutionality, where the legal advice does not go to constitutionality or unlawfulness, or where the attorney general loses confidence in the prime minister as leader.

The final responsibility of an AG is ensuring the administration of justice. Dodek also touches on what this might mean for a non-lawyer AG by suggesting that they may challenge many of our preconceived norms in the legal community, including the lawyers monopoly of legal services provision, self-regulation, and alternative business structures.

The notion of greater privatization and outside funding into legal services is certainly consistent with the philosophy of the new government, and the challenge will be demonstrating that self-regulation is a more effective means of promoting the public interest. Legal aid increases are unlikely, but they have their own limitations.

What most members of the bar are hoping is that the digitization of the courts and the legal system continue with the new AG. The unsuccessful launch of the Court Information Management System in 2013, at a cost of $4.5 million, meant that incremental steps undertaken since then have proceeded cautiously.

The legal system is incredibly inefficient in Ontario, and the continued reliance on paper-based processes is one of the easiest way the province can save citizens some money. Even that remains a small step to a justice system revamping that could streamline and break from traditional ways of doing things.

Sometimes lengthy experience in a profession is the biggest obstacle to reforming that profession. We stay tuned.

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