Thursday Thinkpiece: Andrew Flavelle Martin on Legal Ethics and the Attorney General

Periodically on Thursdays, we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site’s contact form.

Legal Ethics and the Attorney General: A Canadian Analysis

Author: Andrew Flavelle Martin
Publisher: University of Toronto Press
Publication Date: April, 2025
ISBN 9781487554736 (hardcover) | ISBN 9781487554774 (EPUB) | ISBN 9781487554767 (PDF)
Page count: 288 pages; 6 x 9

 

Excerpt: Chapter 1. Introduction: The Attorney General and the Practice of Law [Footnotes included below]

 

Introduction: The Attorney General and the Practice of Law

The Attorney General plays a complex and unique role in the federal, provincial, and territorial governments. Nonetheless, there is not only relatively little academic legal literature on the Attorney General in the Canadian context, but also relatively little knowledge and understand­ing of the role and professional responsibilities of the Attorney General among the public, the media, policymakers, and politicians – including at least some Attorneys General themselves – particularly regarding their status as a lawyer and the duties that flow from that status.

Consider the following three illustrative scenarios:

• May 2014: Minister of Justice and Attorney General for Canada, Peter MacKay, reinforces false and misleading allegations of misconduct against the Chief Justice of Canada that had been made by the Prime Minister.[1] In doing so, MacKay flagrantly breaches his professional duty as a lawyer to encourage respect for the administration of justice. Despite this breach and at least one formal complaint, MacKay faces no disciplinary action by his licensing body, the Nova Scotia Barristers’ Society.[2] Nor does he suffer any apparent political consequences.
• February 2019: In the face of allegations that the Prime Minister improperly attempted to interfere with the decision-making of Jody Wilson-Raybould as Minister of Justice and Attorney General for Canada, Wilson-Raybould adamantly asserts that solicitor-client privilege and her professional duty of confidentiality as a lawyer preclude her from discussing the saga.[3] After Wilson-Raybould is granted a waiver by the Governor General in council,[4] her testimony makes it clear that powerful politicians and bureaucrats – including the Prime Minister and the Clerk of the Privy Council – were ignorant or contemptuous of the constitutional principle of prosecutorial independence. At the same time, she defends her recording of a key conversation, despite such a surreptitious recording being contrary to the rules of professional conduct.[5]
• October 2019: Nova Scotia Minister of Justice (and Attorney General) Mark Furey tells reporters that striking members of the provincial Public Prosecution Service are greedy: “I’m troubled by the fact that our prosecutors are looking out for their personal financial best interests over the needs of victims.”[6] Such remarks would arguably breach the professional duty of civility if made by a lawyer. Furey, however, is a non-lawyer and, thus, the Nova Scotia Barristers’ Society has no regulatory or disciplinary jurisdiction over him. Though Furey’s remarks are criticized in the legislative assembly and elsewhere,[7] he faces no apparent consequences.

The purpose of this book is to demonstrate that the Attorney General is – and should be – accountable for their conduct under the same law of lawyering that is applicable to all lawyers. The Attorney General is unique among elected politicians because they necessarily practice law in the course of their official duties. The Attorney General is account­able in all the ways that other elected politicians are accountable, plus one other way: as a lawyer. The legal and political expectations of the Attorney General are, therefore, higher than – and should be higher than – the expectations of other elected politicians.

Any explicit or implicit misconceptions that the Attorney General is not really a lawyer, that conduct wrongful for lawyers is not wrongful for the Attorney General, or that the forms of accountability appropri­ate for lawyers are not appropriate for the Attorney General, are under­standable. They are also incorrect and deeply problematic as a matter of both law and policy. It is true that Canadian law societies, as regulators of the legal profession, almost never discipline the Attorney General. However, that does not mean that they should not or cannot do so. Indeed, the ability of law societies to do so and the real possibility of them doing so are both essential to the rule of law.

While I cheerfully admit to being romantic and idealistic,[8] there is nothing romantic or idealistic about the accountability of the Attorney General for violations of the law of lawyering.

If one had asked one of the great Attorneys General of modern Cana­dian history – for example, the late Ian Scott – I expect that they would consider it obvious and intuitive that the Attorney General is a law­yer, should meet the same standards as other lawyers, and should face some form of accountability for shortcomings.[9] The recent conduct of some Attorneys General, and the absence of any discernable political fallout for that conduct, both suggest that this understanding has been ignored, if not forgotten entirely. This fundamental concept – that the Attorney General is a lawyer and is subject to the same professional standards as other lawyers – is not novel but does seem to have been ignored or forgotten, at least in the Canadian context. Indeed, John Ll. J. Edwards, the leading authority on the office of the Attorney Gen­eral in the United Kingdom and in the broader Commonwealth, was quite clear in his classic 1964 work The Law Officers of the Crown, and as recently as 1995 in a Canadian essay, that outside their prosecuto­rial decision-making, the Attorney General was and should be liable to professional discipline in the same way as any other lawyer.[10] Even Edwards, however, focused little on this professional accountability of the Attorney General as a lawyer.[11]

In this book, I explore how the rules of professional conduct for law­yers and the broader law of lawyering apply to the Attorney General. My goal is certainly not to identify and analyse every legal ethics issue that could arise for the Attorney General. Instead, I focus on the issues that are, in my view, most important and most illustrative in demon­strating the complexity of legal ethics for the Attorney General. I then consider the most important aspects of, and prospects for, accountabil­ity for the Attorney General. I then bring together these twin themes of complexity and accountability to draw out key lessons. The underly­ing and unifying current is that the Attorney General is a lawyer and should be understood by others, and by themselves, as being bound by the rules and norms of legal ethics. Indeed, this is true even in those rare and problematic instances where the Attorney General is not a lawyer, by which I mean that they are not a licensed member of a provincial or territorial law society.

A legal ethics model is thus a meaningful and unavoidable frame­work to understand the role of the Attorney General – most of all for the Attorney General themselves and for those around them – includ­ing their responsibilities and accountabilities. Conversely, any account or self-image of the Attorney General that ignores or minimizes their functional identity as a lawyer and the impact of legal ethics is necessar­ily a misleadingly simplistic one. Legal ethics also provides normative guidance to Attorneys General as they attempt to balance the inherent tensions in their role. This important role for legal ethics remains true even if and when the law society does not adequately enforce the law of lawyering, whether generally or specifically with regard to the Attor­ney General.

Indeed, throughout this book I consciously refer to accountability instead of enforcement. While the potential for professional discipline by the corresponding law society is important, it is not determinative. Indeed, law society discipline is not the sole accountability mechanism for many lawyers. Insofar as the Attorney General is legally or practi­cally immune from law society discipline, the rules and norms of legal ethics nonetheless remain an established, clearly articulated, and appro­priate framework for assessment and accountability. Such accountabil­ity may take multiple forms other than professional discipline. These forms could include political or parliamentary accountability – aided, prompted, or even instigated by the media and public pressure.

This book is necessary because little of the existing Canadian legal literature on the Attorney General explicitly addresses legal ethics and their application to the Attorney General. Most of that literature can be organized into two waves of scholarship, a concept I adopt from the work of Adam Dodek on the history of legal ethics literature in Can­ada.[12] The first wave focused on the prosecution function, including the relationship of Crown prosecutors to the Attorney General, the mean­ing and scope of prosecutorial discretion and prosecutorial indepen­dence, and the benefits of an independent Public Prosecution Service.[13] This wave most recently considered the independence of the Attorney General in the context of the SNC-Lavalin controversy.[14] The second wave, beginning in the 1980s, examined the broader role of the Attor­ney General, particularly given the impact of the Canadian Charter of Rights and Freedoms.[15] With few exceptions, both waves overlooked the implications of legal ethics for the Attorney General. This omission is not particularly surprising, given the limited academic and legal atten­tion to Canadian legal ethics more generally throughout this time.[16] The only book-length elements of these two waves tended to be biographi­cal or autobiographical.[17]

A third wave, lean and emerging only in the last decade, focuses on legal ethics and the Attorney General. This wave primarily comprises my own work,[18] which I synthesize and add to in this book. To date, this wave is primarily doctrinal. My hope is that this book will serve as a foundation not only for further doctrinal work, but also for other approaches to legal ethics scholarship, including empirical, critical, and comparative approaches, as well as approaches grounded in economics and literature.

Context

In this introductory chapter, I begin by explaining and exploring the practice of law by the Attorney General. First, I set out the duties of the Attorney General to establish that the Attorney General practises law. Second, I discuss which rules of legal ethics are most relevant and appli­cable to the Attorney General. Third, I identify the client or clients of the Attorney General and explain the legal ethics implications. Fourth, I sit­uate the Attorney General among other lawyers for the Crown, includ­ing the Deputy Attorney General and other government lawyers. Fifth, I identify the multiple roles of the Attorney General and explain the tensions among those roles. In subsequent chapters, I explore the key themes of complexity and accountability.

To begin, however, I need to address some terminology around legal ethics and the Attorney General. As I will explain later in this chapter, in the Canadian model a single legislator is both Attorney General and Minister of Justice. Provincial and territorial legislation tends to use one term or the other when discussing this officeholder and the part of the civil service that reports to them. In federal legislation the two roles are distinct, even though they are explicitly required by statute to be held by a single person. To the extent that these two roles are separable, the Attorney General is essentially the chief lawyer for the govern­ment, whereas the Minister of Justice is the member of Cabinet with ministerial responsibility for the administration of justice. The Attor­ney General practises law while the Minister of Justice does not.[19] I use the term “Attorney General” to refer to the person who holds both roles, primarily because the Attorney General role is what is special as compared to all other members of Cabinet.[20]

The term “legal ethics” also requires some explanation. Legal eth­ics does not have a concise consensus definition.[21] It is, however, a narrower concept than ethics or “law and ethics.” Legal ethics gener­ally refers to the branch of philosophy concerning ethics for lawyers, including but not limited to what is often referred to as “the law of law­yering.”[22] While legal ethics includes lawyers’ legal duties under legis­lation, rules of professional conduct, and case law, it also encompasses broader questions of morality and the role of lawyers in society.[23] As Dodek puts it, “Legal ethics is the applied philosophy of lawyering; it goes to the heart of what it means to be a lawyer and how to attempt to mediate between the conflicting duties that members of the profession owe.”[24] There are many areas of ethics that are important that nonethe­less do not come within legal ethics.

In this book, I focus primarily on the law of lawyering and how that body of law does – and should – apply to the Attorney General. I also address questions of what the Attorney General should do when the law of lawyering does not give a clear answer. I follow Dodek’s imper­ative that “Canadian legal ethics must also attempt to situate ethical issues within a distinctly Canadian context.”[25] Thus my choice of title, Legal Ethics and the Attorney General: A Canadian Analysis, is conscious and deliberate. As I will return to later in this chapter, the modern role of the Attorney General in Canada is unavoidably intertwined with the historical role of the Attorney General in England. However, as the position of Attorney General across Canada is different in some impor­tant respects from its parallel in England, and even more so from its par­allel in the United States,[26] my focus here is on the role of the Attorney General in Canadian jurisdictions.

1. The Attorney General and the Practice of Law

Legal ethics, including the law of lawyering, is only relevant to the Attorney General insofar as they are a lawyer or practise law, or both. In this part, I set out the duties of the Attorney General to establish that the Attorney General practises law – whether or not they are licensed as a lawyer by their corresponding provincial or territorial law society.

The duties of the Attorney General clearly include the practice of law. These duties are set out in statute and are largely consistent across Canadian jurisdictions and over time. For example, the Ontario Minis­try of the Attorney General Act provides as follows:

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 or usage, so far as those duties and powers are applicable to Ontario, and also shall perform the duties and have the 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 the 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.[27]

It is clear from this list that the Attorney General necessarily practises law, insofar as they serve as the Law Officer for Cabinet, provide legal advice to the Crown and the heads of ministries and agencies, and conduct all litigation for the Crown. Indeed, in his Inquiry into Civil Rights, Commissioner James McRuer (as he then was), after canvass­ing the equivalent provisions that existed at that time on the role of the Attorney General in Ontario and other provinces, recommended a statutory requirement that the Attorney General be a lawyer.[28] This role as “Chief Law Officer of the Crown” has also long been recognized in the case law.[29]

While the practice of law has both a formalistic meaning and a func­tional meaning, for the purposes of this book I apply a functional one. A formalistic meaning would be that the practice of law is what is done by persons who are licensed by a law society, whereas a functional mean­ing would be the particular tasks that constitute the practice of law. For example, the Nova Scotia Legal Profession Act provides that “the practice of law is the application of legal principles and judgement with regard to the circumstances or objectives of a person that requires the knowl­edge and skill of a person trained in the law.”[30] The statutory functions of the Attorney General, as laid out above, constitute the “practice of law” under this characterization and, thus, it is appropriate to conclude that the Attorney General necessarily practices law in carrying out their mandate.[31]

While the statutory language quoted above states that the Attorney General “shall conduct and regulate all litigation for and against the Crown,”[32] there is disagreement in the legal literature as to whether, and when, the Attorney General should personally appear in court, especially in criminal proceedings. Brian Smith, while Attorney Gen­eral for British Columbia, argued that regularly appearing in court was appropriate, because such a personal appearance “emphasizes the importance of the matter to the province, and subjects all aspects of the case to intense public scrutiny.”[33] In contrast, Justice Marc Rosenberg, writing extrajudicially, cautioned that while such appearances “in important constitutional cases is proper and welcomed[, he] would be concerned, however, if the Attorney General appeared in more mun­dane cases, and especially in any criminal case.”[34] In particular, Justice Rosenberg thought such appearances in criminal proceedings would create a public apprehension of “a personal or political agenda” and resulting unfairness to the accused.[35] Smith and Rosenberg did seem to agree that only Attorneys General who were competent litigators should make such appearances, though they did not frame the issue as one of competence – with Smith referring to Attorneys General who were “qualified and experienced” and Rosenberg using the example of “great counsel” (giving Ian Scott of Ontario as an example).[36] Simi­larly, for John Ll. J. Edwards, the appointment of Ian Scott as Attorney General for Ontario marked a sea change, as “[u]ntil very recently, the appearance of an Attorney General in person to argue a constitutional (or any other) case was calculated to reveal the incumbent’s lack of forensic skills and experience.”[37]

Although it is usually the Attorney General, acting through their lawyer delegates, who defends legislation against constitutional chal­lenges, in some circumstances the Attorney General will direct their lawyers to concede that a law is unconstitutional or even actively argue against its constitutionality.[38] These positions in constitutional litigation became the subject of much debate after the adoption of the Canadian Charter of Rights and Freedoms.[39]

Oddly, despite these statutory duties that clearly constitute the prac­tice of law, the Attorney General is not required to be a lawyer, that is, a member of the corresponding law society.[40] However, as I will argue further in chapter 6, such a non-lawyer Attorney General likewise nec­essarily practises law.

2. The Attorney General and Legal Ethics

Legal ethics is applicable and relevant for the Attorney General because the Attorney General practises law. While it is clear that the Attorney General practises law, that does not mean that, in reality, all parts of the law of lawyering are relevant to them.[41] For example, as it is rare for even the great Attorneys General to personally appear in court (or before a tribunal),[42] the duties of the lawyer when litigating would sel­dom be engaged.[43] Moreover, those duties, if and when engaged, would not raise issues specific to the Attorney General.

Given the role of the Attorney General as both a lawyer and a politi­cian, the most relevant and important duties within the law of lawyering are readily identifiable. Like all lawyers, the core duties of loyalty (including confidentiality, candour, conflicts, and “commitment to the client’s cause”),[44] integrity,[45] and competence are essential.[46] The duty of candour may mean giving “firm” and unwelcome advice.[47] Given the breadth of the scope of practice of the Attorney General – purport­edly all legal matters involving the Crown – it would seem impossible for any Attorney General to personally meet their duty of competence. However, like all lawyers, the Attorney General can fulfil their duty of competence by “obtain[ing] the client’s instructions to retain, consult or collaborate with a lawyer who is competent for that task” or by oth­erwise “becom[ing] competent.”[48] Given the existence of a ministry or department of justice, consent would be implicit, at least for lawyers who are members of the public service if not for outside counsel. How­ever, insofar as the Attorney General relies on departmental lawyers, the Attorney General has a keen professional self-interest in the com­petence of those lawyers. If the Attorney General did choose to appear in court, the duty of competence (as well as the duties of a litigator)[49] would be engaged.

Other duties relevant to all lawyers are those around withdrawal. In particular, withdrawal is mandatory “if … a client persists in instructing the lawyer to act contrary to professional ethics.”[50] While the circumstances in which a lawyer may withdraw are limited, one of those circumstances is where there is “a serious loss of confidence between the lawyer and the client” – including where “a lawyer is deceived by his client” or “the client refuses to accept and act upon the lawyer’s advice on a significant point.”[51] Any withdrawal, how­ever, must be “for good cause and on reasonable notice to the cli­ent.”[52] Where a lawyer is an officer or employee, withdrawal does not necessarily require resignation. Nonetheless, it is difficult to imagine circumstances where the Premier or Prime Minister does not remove the Attorney General from their role entirely where the Attorney General has purported to withdraw merely from a specific matter. Particularly important for the Attorney General, as I will dis­cuss further in chapter 4, is that the law of lawyering does not allow for a lawyer to publicly disclose their reasons for withdrawal, unless one or more of the limited exceptions to confidentiality and solicitor-client privilege – such as future harm – are engaged.[53] While there is a cogent argument that the special role of the Attorney General should anchor an additional “public interest” exception to confiden­tiality, which would allow them to reveal their reasons for resignation where the conduct that prompted the resignation was egregious, in my view such an argument is most compelling where that reveal is made within the House or legislative assembly and thus protected by parliamentary privilege.[54]

Given the high visibility of the Attorney General and their obligations and opportunities to speak publicly, particularly important are the duty not to interfere with fair trial rights,[55] the duty to encourage respect for the administration of justice,[56] and the duty of civility.[57] In particular, the duty to encourage respect for the administration of justice requires that criticism of courts and tribunals not be “petty, intemperate or unsup­ported by a bona fide belief in its real merit” and explicitly recognizes that “if a lawyer has been involved in the proceedings, there is the risk that any criticism may be, or may appear to be, partisan rather than objective.”[58] Moreover, the duty also encourages lawyers to defend “a tribunal [that] is the object of unjust criticism.”[59] Indeed, at least in times past, this was particularly expected of the Attorney General. As noted by Craig Jones, “it was the traditional and honourable role of the attorney general to speak in defence of the courts when they were criti­cized, because by constitutional convention judges do not speak except through their judgments.”[60]

To the extent that the Attorney General is ultimately responsible for criminal proceedings, the duties of the prosecutor are integral to that role.[61] While this role and its implications may be considered a mat­ter of both public law and of legal ethics, the Attorney General must also uphold their own prosecutorial independence, that is, “[the] con­stitutional principle that the Attorneys General of this country must act independently of partisan concerns when exercising their delegated sovereign authority to initiate, continue or terminate prosecutions.”[62] As I will return to in chapter 5, the Attorney General, like the Crown prosecutors who are their delegates, is immune from law society dis­cipline for actions within the scope of prosecutorial discretion, absent bad faith.

Other rules of professional conduct, though perhaps politically inconvenient, are also applicable to the Attorney General. Consider here the absolute prohibition against surreptitiously recording conver­sations with lawyers or clients.[63] Although there may be times when secret recordings are expedient, whether for political purposes or to document wrongdoing,[64] such recording violates the law of lawyering regardless of any compelling reason for doing so.

Given that their political staffers often wield the power of the Attor­ney General, also relevant is the professional duty of lawyers to ade­quately supervise their non-lawyer staff and take complete professional responsibility for their actions.[65] As I will discuss below,[66] the law in most provinces is unclear as to whether a lawyer is responsible for other lawyers acting under their direction and authority. There is poten­tially some convergence here with the antiquated notion of ministerial responsibility. However, while ministerial responsibility may no longer be expected or enforced as a political matter, whether for the Attorney General or for other ministers, the responsibility of a lawyer for their staff may well be enforced by the law society.

As the Attorney General is perhaps the archetype for lawyers in pub­lic office, I also emphasize here the rule that “[a] lawyer who holds public office must, in the discharge of official duties, adhere to stan­dards of conduct as high as those required of a lawyer engaged in the practice of law.”[67] I note, however, that this rule has been applied unevenly to politicians, including the Attorney General, such that the duties of lawyers are often balanced against the roles and responsibili­ties of politicians.[68]

Likewise, as the Attorney General is both a lawyer and a politician, I emphasize that the rules of professional conduct explicitly require that any concurrent or outside interests or pursuits not interfere with a law­yer’s professional duties: “A lawyer who engages in another profes­sion, business or occupation concurrently with the practice of law must not allow such outside interest to jeopardize the lawyer’s professional integrity, independence or competence. … A lawyer must not allow involvement in an outside interest to impair the exercise of the law­yer’s independent judgment on behalf of a client.”[69] For my analysis, I assume that the Attorney General does not engage in the part-time pri­vate practice of law, as such outside practice of a profession is typically prohibited for members of Cabinet.[70]

It is worth emphasizing that many of these duties persist after the lawyer-client relationship has ended. Perhaps the most important such persisting duty for the Attorney General is the duty of confidentiality to the Crown as the client. In particular, that duty requires that “[a] lawyer must not use or disclose a client’s or former client’s confiden­tial information to the disadvantage of the client or former client, or for the benefit of the lawyer or a third person without the consent of the client or former client.”[71] Thus, assuming no exceptions to the duty of confidentiality are engaged, a former Attorney General who contin­ues in politics as an opposition or backbench legislator cannot reveal such confidential information privately or publicly for political gain or for any other purpose.[72] Consider here the insistence of Jody Wilson-Raybould that she could not reveal Cabinet confidences or information subject to solicitor-client privilege due to her duty of confidentiality as a lawyer, unless or until those were waived.[73] As I will return to in chapter 5 and chapter 7, parliamentary privilege means that any such disclosures that are made in the legislative assembly would be subject only to consequences imposed by the assembly, potentially act­ing through the Speaker.[74]

3. The Attorney General and Legal Ethics: Who Is the Client?

To understand how the law of lawyering applies to the Attorney Gen­eral, it is important to identify the client or clients of the Attorney Gen­eral. While the Attorney General’s main and ultimate client is the Crown (in right of Canada or of the province or territory), as an organizational client, the Crown acts, gives instructions, and receives advice through individuals and, ultimately, the Governor (or Lieutenant Governor) in Council through the Prime Minister (or Premier) and Cabinet.[75] Impor­tantly, the duty of the Attorney General as a lawyer remains to the orga­nizational client (i.e., the Crown) and not to the persons from whom they receive instructions.[76] The Attorney General will also, at least in some circumstances, assign their government lawyer delegates to defend members of the judiciary when sued for actions in their official capacity.[77] However, there is surprisingly intense disagreement over whether the legislature is also a client of the Attorney General.

This role as legal advisor to the legislature is clear in statute (when properly interpreted) and in case law, as well as in the academic litera­ture. Recall that the statutory duties of the Attorney General include those “that belong to the Attorney General and Solicitor General of England by law or usage, so far as those duties and powers are appli­cable to Ontario.”[78] It is explicit in the work of John Ll. J. Edwards that the role of the Attorney General in England included providing legal advice to the legislature on bills.[79] As for case law, the Supreme Court of Canada in Krieger v. Law Society of Alberta stated, albeit in obiter, that “[a]s in England, [Attorneys General] serve as Law Officers to their respective legislatures.”[80] Moreover, during the hearing in Miron v. Trudel, Lamer C.J. clearly indicated that he considered the Attorney General to be counsel to the House of Commons: “I for one question whether it is possible for an Attorney General to make a concession that the House violated the Charter. I would not want to be a member of that House and see my lawyer make that concession.”[81] This role is also mentioned in passing in the legal literature by Grant Huscroft (“[t]he Attorney General is also the Legislature’s lawyer”) and by Roy McMurtry during his term as Attorney General for Ontario (“[t]his responsibility to give legal advice to the legislature remains part of my role in Ontario even today”),[82] as well as by Dodek in an important op-ed in the Globe and Mail.[83]

Nonetheless, former Senior Legal Counsel to the House of Commons Steven Chaplin has argued that “[t]here is no basis for this conclusion as it relates to Attorneys-General in Canada. … [T]here is no circumstance under which an Attorney General should be considered the legal advi­sor to a legislature in this country.”[84] Specifically, he argued that my previous conclusions, published elsewhere,[85] “are based on a romantic, misplaced and outdated understanding of the role of Attorney General in the United Kingdom, and a failure to appreciate the significantly dif­ferent history and role of the Attorney General in Canada.”[86] Despite Chaplin’s adamance, as I have explained elsewhere, I find his argu­ment ultimately unconvincing – particularly his quick and, respect­fully, unsupported dismissal of the authorities I have mentioned here.[87] While Chaplin is certainly correct that the legislative assembly has its own legal advisors (in roles such as the one he occupied as Senior Legal Counsel to the House of Commons), it does not necessarily follow that the Attorney General is not also a legal advisor to the legislature – admit­tedly a role that is vestigial or at least atrophied in practice.[88]

If the Attorney General is a legal advisor to the legislature on bills before it, then they would appear to be in a joint retainer in which they are providing legal advice on the same matters to both the Cabinet and the Legislature.[89] This joint retainer should mean that there can be no confidentiality as between these two clients.[90] However, given the controversy over this role as legal advisor to the legislature, I will not address this issue further here.

4. The Attorney General, the Deputy Attorney General, and Government Lawyers

My focus in this book is specifically on the Attorney General themselves. However, they should be situated in the context of other lawyers for the Crown, including the Deputy Attorney General. While the Attorney General is the Chief Law Officer of the Crown, government lawyers (lawyers in the public service for the federal or provincial Crown)[91] sup­port and fulfil that role. It is generally accepted that all government law­yers, including those who advise other ministries, should ultimately report to the Attorney General.[92] The literature on legal ethics for gov­ernment lawyers largely follows Adam Dodek’s “rule of law triangle” model and Elizabeth Sanderson’s “three layers” model, under which government lawyers are understood as simultaneously being members of the public service, lawyers, and delegates of the Attorney General.[93] Under this approach, the key and complex interaction for government lawyers is between their duties as lawyers and their duties as public servants – two sets of duties that are constructed separately and rarely with each other in mind.[94] In contrast, the Attorney General is not a member of the public service and is instead a legislator and a member of Cabinet.

The Deputy Attorney General, like other deputy ministers, acts when the Attorney General is unable and also serves as the interface between the Attorney General and the members of the public service.[95] Indeed, as Elizabeth Sanderson emphasizes, the neutrality of the public service – a constitutional convention – requires this interface.[96] While the Deputy Attorney General is a Cabinet appointee,[97] they are nonetheless a mem­ber of the public service.[98] Among other things, they not only have a personal duty of political neutrality but, indeed, often face even more stringent restrictions on their political activity than do other public ser­vants.[99] For these reasons, in my view the Deputy Attorney General is better functionally understood as the senior government lawyer than as the stand-in or substitute for the Attorney General. Thus, I do not focus in this book on the role of the Deputy Attorney General or the applica­tion of legal ethics to the Deputy Attorney General.[100]

Instead, I focus on the meaning of legal ethics for the Attorney General themselves, as opposed to what might be understood as their vicarious or supervisory liability for government lawyers (or lawyers on their political staff). The law of lawyering is largely silent on the responsibil­ity of a lawyer for those lawyers who report to them, as opposed to their explicit responsibility for non-lawyer staff and articled students.[101] The main exception is Quebec, where the Code of Professional Conduct of Law­yers provides that “[a] lawyer must take reasonable measures to ensure that every person who collaborates with him when he engages in his professional activities and, where applicable, every firm within which he engages in such activities, complies” with the legislation on lawyers and professionals more generally.[102] It also provides more explicitly that “[a] lawyer who exercises authority over another lawyer must ensure that the framework within which such other lawyer engages in his pro­fessional activities allows him to comply with his professional obliga­tions.”[103] (This does not mean that the Attorney General does not have a moral responsibility as the chief lawyer for the Crown, parallel to the responsibility that Sanderson articulates for the Deputy Attorney Gen­eral, to make it clear to government lawyers “that they are bound by their provincial or territorial law society code of professional conduct.”[104]) In this respect, the responsibilities of the Attorney General for the lawyers of their ministry under the law of lawyering are significantly narrower than their responsibilities under ministerial responsibility. At the same time, by communicating or approving advice to Cabinet from ministry lawyers, including the Deputy Attorney General, the Attorney General becomes responsible for that advice. The law of lawyering explicitly and reasonably recognizes that any lawyer may need to enlist other lawyers to fulfil their responsibilities.[105] Thus, I focus on the Attorney General themselves.

5. The Multiple Roles of the Attorney General

A meaningful account of legal ethics and the Attorney General must consider their multiple roles and the ramifications of those roles for their duties as a lawyer.

I begin with the “two hats” model of the Attorney General.[106] As men­tioned above when I addressed terminology, the same person is both the Minister of Justice and the Attorney General. These roles are distinct in some jurisdictions – federally, for example – but not in others.[107] Even where these roles are distinct, however, they remain a single Cabinet portfolio.[108]

As Minister of Justice, this person is the member of Cabinet respon­sible for justice policy and the administration of justice – matters such as courthouse funding, legal aid, and judicial appointments.[109] Like other Cabinet portfolios, this is a legitimately political role in which the Minister is one of many Ministers in Cabinet.[110] Some, such as for­mer Ontario Attorney General Ian Scott, have suggested that this policy advice is special: “[A]n independent attorney general should bring to policy-making in government a particular concern for principle, for constitutionalism, and for rights. … [I]t is the function of an independent attorney general to bring the focus of justice to questions of politics.”[111] Nonetheless, Cabinet may legitimately choose not to follow such policy advice.[112] Given the Canadian system of responsible government, the Minister is responsible to the legislative assembly and must account for matters within their portfolio.[113] As is often recognized, these duties of this Minister do not mean they need to be a lawyer, in the same way that the Minister of Health need not be a doctor or other health professional.[114]

As Attorney General, however, this person is the Chief Law Officer of the Crown and provides objective legal advice to the Crown.[115] This role, as discussed above, entails the practice of law and is traditionally held by a lawyer – although I will discuss in chapter 6 the problems that arise when the Attorney General is not a lawyer. This role is pur­portedly apolitical, particularly as it relates to criminal proceedings.[116] As mentioned above, “it is a constitutional principle that the Attorneys General of this country must act independently of partisan concerns when exercising their delegated sovereign authority to initiate, con­tinue or terminate prosecutions.”[117]

The “two hats” model is not necessarily contrary to the duties of the Attorney General as a lawyer. The rules of professional conduct explic­itly recognize that a client may legitimately seek, and benefit from, the lawyer’s non-legal advice, including policy advice.[118] However, those rules also caution that the lawyer “should clearly distinguish legal advice from other advice.”[119] Some commentators have argued that the roles constitute an inherent conflict of interest and should be sepa­rated.[120] Others, such as the Honourable Anne McLellan, argue that “such a structural change would diminish the credibility of the Attor­ney General’s legal advice and lead to the loss of the broad perspective the joined roles provide to the person holding them.”[121] I do not dispute that this dual role presents an inherent conflict of interest – for exam­ple, the Attorney General provides services to the court while being the most common litigant before it.[122] However, that conflict and the related temptations facing the government and the Attorney General are, for the most part, accepted and tolerated and managed, whether for principled or pragmatic reasons, historical or otherwise.[123] One important tool to do so is Memorandums of Understanding between Attorneys General and the Chief Justices of the courts for which they are responsible.[124] While a breach of such a Memorandum may pro­voke media attention and public pressure to resign, it likely also consti­tutes a violation of the duty to encourage respect for the administration of justice. I will return to this duty in chapter 2.

From a legal ethics perspective, the “two hats” create a risk that polit­ical factors would pose a conflict of interest for the Attorney General, in which that person’s personal and political interests could influence the legal advice given to the Crown as the client. While typical accounts of the “two hats” model do not explicitly prioritize one “hat” over the other, former Ontario Attorney General Ian Scott argued that the Attor­ney General role takes priority over the Minister of Justice role: “It is understood in our province that the attorney general is first and fore­most the chief law officer of the Crown, and that the powers and duties of that office take precedence over any others that may derive from his additional role as minister of justice and member of Cabinet.”[125] Indeed, McLellan, in her report on the Minister of Justice and Attorney General for Canada, not only endorsed Scott’s view but recommended that it be codified in federal legislation.[126] As a matter of legal ethics, Scott’s posi­tion is consistent with the rules of professional conduct insofar as those rules demand that any concurrent or outside interests or pursuits do not interfere with or reduce the lawyer’s professional duties.[127]

Moreover, in the “two hats” model, the person who occupies the sin­gle position of both Minister of Justice and Attorney General is bound by Cabinet solidarity. Cabinet solidarity means that all ministers are expected to publicly criticize Cabinet decisions only if they resign from Cabinet.[128] However, as I will discuss in chapter 4, it is unclear whether resignation is sufficient to allow such criticism by the Attorney General, given their professional duties of confidentiality and their obligation to protect solicitor-client privilege.

Further complicating the “two hats” model, some Canadian jurisdic­tions have not spun off the traditional public safety functions of the Attorney General into a separate ministry or department.[129] In those jurisdictions, though the Attorney General is not technically cross-appointed, they hold what would in other jurisdictions be two portfo­lios. I will focus on the legal ethics issues for a cross-appointed Attorney General in chapter 3.

Like all members of Cabinet,[130] in the Canadian system of responsi­ble government, the Attorney General is by convention also a legisla­tor. Thus, they must navigate the same tensions that face all ministers between their role as minister and their role as legislator,[131] particu­larly with regard to advocating for their constituents.[132] They must also navigate the tensions between their role as Attorney General and their role as a legislator. For example, while constituent advocacy by legislators and their staff is often exempted from the prohibition against the unlicensed practice of law,[133] meaning that such advo­cacy is permissible by non-lawyers, the Attorney General involved in such advocacy would likely face a conflict of interest between their duties to the Crown as client and their duties to the constituent as pseudo-client.

In many provinces, legislation on the legal profession also makes the provincial Attorney General an ex officio bencher of the law society.[134] The tension between this role and the Minister of Justice role – the Minister responsible for the law society and its legislation – may cre­ate issues around the independence of the bar.[135] However, anecdotal evidence suggests that Attorneys General seldom actively use their role as benchers, even by attending meetings. Legislation on the legal pro­fession sometimes has a parallel provision making the federal Attorney General an ex officio bencher if they are a member of that law society. Given that the regulation of the practice of law is within provincial juris­diction,[136] this bencher role for the federal Attorney General does not raise the same tensions as it does for the provincial Attorney General. In Ontario, such legislation also makes the provincial Attorney General “the guardian of the public interest in all matters within the scope of this Act or having to do in any way with the practice of law in Ontario or the provision of legal services in Ontario.”[137]

The Attorney General also has a unique role in exercising parens patriae powers and litigating in the public interest.[138] While the Attorney General has a role with regard to protecting and overseeing charities, that role is not especially relevant to my legal ethics analysis and so I do not address it further here.[139]

Some commentators argue that the Attorney General has a greater internal role within government as “the defender of the rule of law,” particularly with regard to compliance with the Canadian Charter of Rights and Freedoms.[140] At minimum, the Attorney General has an explicit and affirmative statutory duty to “see that the administration of public affairs is in accordance with the law.”[141] This duty is unique to the Attorney General,[142] although it could potentially be imposed as a matter of contract on any lawyer by any client. While all lawyers have a professional duty not to assist their client in unlawful conduct and to withdraw if the client persists in such conduct,[143] generally lawyers do not have an affirmative professional duty to see that their clients act lawfully. Elizabeth Sanderson characterizes this special duty of the Attorney General as “a duty of fundamental and unique importance” and emphasizes its connection to the role of “guardian of the rule of law.”[144] Ian Scott argued that “[a]ny discussion of the Attorney Gen­eral’s responsibilities must keep this fundamental obligation in mind” and emphasized that “[i]n advising on questions of constitutionality, the Attorney General must give paramount consideration to the obliga­tion to ensure that government action complies with the law, in this case the supreme law of Canada.”[145]

While many of these roles do not constitute the practice of law, the status of the Attorney General as a practising lawyer is still meaning­ful and relevant in all their roles. One reason is that it is often unclear in which role the Attorney General is acting at any given time – unclear not only to the government but also to legislators, the media, and the public. Indeed, while it is possible to separate out these roles in the abstract, in practice they are often closely intertwined, particularly the “two hats.”[146] Another reason is that, while there is some debate in the legal ethics literature over whether law societies should regulate lawyers’ extra-professional conduct,[147] the importance and visibility of the Attorney General as Chief Law Officer of the Crown would likely widen the scope of conduct that is legitimately a matter of law society attention.[148] I acknowledge that the rules of professional con­duct on lawyers in public office seem to limit this scope: “Generally, the Society is not concerned with the way in which a lawyer holding public office carries out official responsibilities, but conduct in office that reflects adversely upon the lawyer’s integrity or professional competence may be the subject of disciplinary action.”[149] However, as the only elected official who necessarily practises law in the course of their duties of office, the Attorney General should be the most scru­tinized of all the lawyers in public office. Likewise, they should face heavy scrutiny as one of the most powerful and high-profile lawyers in the province or territory. I also emphasize that one of the duties I have identified as being of special importance to the Attorney Gen­eral – the duty to encourage respect for the administration of justice – explicitly applies to lawyers both in and out of their professional lives and particularly to those lawyers with high public profiles:

The obligation outlined in the rule is not restricted to the lawyer’s pro­fessional activities but is a general responsibility resulting from the law­yer’s position in the community. A lawyer’s responsibilities are greater than those of a private citizen. A lawyer should take care not to weaken or destroy public confidence in legal institutions or authorities by irresponsi­ble allegations. The lawyer in public life should be particularly careful in this regard because the mere fact of being a lawyer will lend weight and credibility to public statements.[150]

For all these reasons, it will be difficult for the Attorney General to argue that conduct in any of their public roles should not be subject to the law of lawyering. Indeed, the Attorney General should embrace this responsibility.

While the Premier can remove the Attorney General from Cabinet, for any reason or for no reason, the Premier cannot disbar the Attorney General or otherwise threaten their status as a lawyer. To this extent, their power over the Attorney General as a member of Cabinet is lim­ited. This limit makes the independence of the bar meaningful for the Attorney General.

The Organization of This Book

This book is organized in seven chapters after this Introduction. Chapter 2, chapter 3, and chapter 4 develop the theme of complexity. Chapter 2 considers the professional duty to encourage respect for the administra­tion of justice as it applies to the Attorney General. It analyses two cases in which law societies have attempted to discipline Attorneys General for breaching these duties – the only two public instances in which law societies have ever attempted to discipline Attorneys General – as well as other notable instances in which the duty appears to have been breached but no public disciplinary proceedings have resulted. Chapter 3 uses the unique case study of Quebec Premier and Attorney General Maurice Duplessis to demonstrate and analyse the tensions that occur when the Attorney General is cross-appointed to another portfolio, particularly that of Premier. Chapter 4 considers the poten­tial legal ethics issues around the resignation of the Attorney General, including confidentiality as well as returning to the duty to encourage respect for the administration of justice.

Chapter 5, chapter 6, and chapter 7 turn to the theme of accountabil­ity. Chapter 5 demonstrates that, although some commentators suggest otherwise, the Attorney General does not enjoy absolute immunity to law society discipline. I set out and analyse the limited and specific respects in which they are immune. Chapter 6 analyses the odd situa­tion of the non-lawyer Attorney General. I explain that while such an appointment is permissible under current case law, it is legally question­able and creates many legal ethics problems – particularly the problem that a non-lawyer is not subject to law society regulation or discipline. I propose potential legislative solutions to those problems. While law society discipline of the Attorney General is possible, and law society discipline of the non-lawyer Attorney General could be made possible through legislative amendments, it remains highly unlikely that law societies will exercise that disciplinary jurisdiction. For this reason, I consider alternative accountability mechanisms in chapter 7, with a focus on parliamentary accountability. I argue that codes of conduct for legislators and members of Cabinet can be used – and should legiti­mately be used – to impose accountability for breaches of legal ethics by the Attorney General, as should the powers of the Speaker under the Standing Orders.

I conclude in chapter 8 by reflecting on my analysis throughout the book. First, I provide a synthesis of options for reform that would recog­nize and strengthen the application of legal ethics to the Attorney Gen­eral. In particular, I recognize that separating the “two hats” of Attorney General and Minister of Justice into two separate positions held by two separate individuals would be beneficial from a legal ethics perspec­tive, but not necessarily from a public law perspective. Although I would not recommend that change at this time, it remains an option for the future. Against the backdrop of these options for reform, I then emphasize that, with or without viable mechanisms for accountability, the conduct of the Attorney General – both as a lawyer and otherwise – must be guided by integrity and self-respect. I ultimately circle back to the wisdom of two great authorities. The first is John Ll. J. Edwards and his emphasis on personal integrity: “in the final analysis it is the strength of character, personal integrity and depth of commitment to the principles of independence and the impartial representation of the public interest, on the part of the holders of the office of Attorney Gen­eral, which is of supreme importance.”[151] The second is former Attor­ney General for Ontario Ian Scott and his exhortation that the Attorney General is a lawyer first and a politician second: “the attorney general is first and foremost the chief law officer of the Crown, and … the pow­ers and duties of that office take precedence over any others that may derive from his additional role as minister of justice and member of Cabinet.”[152]

___________________________

 

[1] House of Commons Debates, 41–2, no. 80 (5 May 2014): 4919 (Hon. Peter MacKay); Canadian Press, “MacKay Offers Few New Details on Supreme Court Spat” The News (New Glasgow) (3 May 2014), 15. For more detail, see chapter 2.

[2] See, e.g., Cristin Schmitz, “MacKay Fell Short as AG, Lawyers Say” The Lawyers Weekly (30 May 2014), 1.

[3] Tonda MacCharles and Bruce Campion-Smith, “Talks with Ex-minister ‘Troubling,’ MPs Told” The Toronto Star (26 February 2019), A1 [MacCharles & Campion-Smith].

[4] PC 2019-0105 (25 February 2019), online: <https://orders-in-council.canada.ca/attachment.php?attach=37424&lang=en> [https://perma.cc/8XM4-RKDQ].

[5] See, e.g., Jamie Strashin, “Wilson-Raybould May Not Have Broken the Law, But Her Wernick Tape Crossed Ethical Lines, Lawyers Say” CBC News (3 April 2019), online: <https://www.cbc.ca/news/politics/wilson-raybould-tape-1.5082119> [https://perma.cc/XK9F-WVFZ].

[6] Steve Bruce, “Court to Hear Bid to End Strike” The Chronicle Herald [Halifax] (25 October 2019), A3.

[7] Ibid. See also Francis Campbell, “Liberal Legislation Renders Injunction Moot” The Chronicle Herald [Halifax] (26 October 2019), A3.

[8] See, e.g., Steven Chaplin, “The Attorney General Is Not the Legislature’s Legal Advisor” JPPL 14 (2020): 189 at 190 [Chaplin]: “To a great extent, the conclusions [Martin] reaches are based on a romantic, misplaced and outdated understanding of the role of Attorney General in the United Kingdom, and a failure to appreciate the significantly different history and role of the Attorney General in Canada.”

[9] For reflections on Scott see, e.g., the Honourable Justice Ian Binnie, “Mr. Attorney Ian Scott and the Ghost of Sir Oliver Mowat” Advocates’ Soc J 22, no. 4 (2004): 4; David J. Mullan and the Honourable Gary Trotter, “Retrospective: Ian Gilmour Scott, O.C., (1934–2006)” Queen’s LJ 34 (2009): 769; W. Brent Cotter, “Ian Scott: Renaissance Man, Consummate Advocate, Attorney General Extraordinaire” in In Search of the Ethical Lawyer, ed. Adam Dodek and Alice Woolley (Vancouver: University of British Columbia Press, 2015), 202. (Now Justice Woolley of the Court of Appeal of Alberta.) For similar reflections on Roy McMurtry, see, e.g., Adam Dodek, “Remembering Attorney General Roy McMurtry” (19 April 2024), online (blog): Slaw <https://www.slaw.ca/2024/04/19/remembering-attorney-general-roy-mcmurtry/> [https://perma.cc/99TG-9XHP].

[10] John Ll. J. Edwards, The Law Officers of the Crown (London: Sweet & Maxwell, 1964), 277 [Edwards, Law Officers]: “As a member of the Bar, however, the Attorney-General is in no way distinguishable from his professional brethren in being accountable to the Benchers of his Inn of Court regarding his own professional behaviour.” See also John Ll. J. Edwards, “The Office of Attorney General: New Levels of Public Expectations and Accountability,” in Accountability for Criminal Justice: Selected Essays, ed. Philip C. Stenning (Toronto: University of Toronto Press, 1995), 294 at 303: “I disapprove strongly of any legislative immunity that is designed to insulate the holder of the office of attorney general from all forms of professional accountability.” On the carve-out for prosecutorial decision-making see, e.g., 302–3.

[11] Edwards more often referred to accountability in Parliament as being the most important and appropriate kind of accountability for the Attorney General, although in that context he was focusing on accountability for prosecutorial decision-making (via ministerial responsibility) and the interplay between Parliamentary accountability and accountability imposed by the courts. See, e.g., J. Ll. J. Edwards, “The Attorney General and the Charter of Rights,” in Charter Litigation, ed. Robert J. Sharpe (Toronto: Butterworths, 1987), 45 [Edwards in Sharpe] at 46: “the accountability of the Attorney General, within his sphere of authority, is to be discharged on the floor of the legislature or in the Parliament of Canada, as the case may be.” Edwards was keenly aware of the limitations of this accountability (at 47): “Looked at in realistic terms, there is no denying the fact that the practical exigencies of a crowded legislative timetable, and even more so the ineffectual questioning of the principal Law Officers of the Crown, have contributed to diminishing confidence in the argument that the proper place to subject the Attorney General to a full accounting for departmental activities is the legislative assembly.”

[12] Adam M. Dodek, “Canadian Legal Ethics: Ready for the Twenty-First Century at Last” Osgoode Hall LJ 46, no. 1 (2008): 6 [Dodek, “Ready”]. See also Andrew Flavelle Martin, “Where Are We Going? The Past and Future of Canadian Scholarship on Legal Ethics for Government Lawyers” Can Bar Rev 99, no. 2 (2021): 322 [Martin, “Where Are We Going?”].

[13] See, e.g., Connie Sun, “The Discretionary Power to Stay Criminal Proceedings” Dal LJ 1, no. 3 (1974): 482; Peter Burns, “Private Prosecutions in Canada, the Law and a Proposal for Change” McGill LJ 21 (1975): 269; Frank Armstrong and Kenneth L. Chasse, “The Right to an Independent Prosecutor” CR (NS) 28 (1975): 160; Hon. L.K. Graburn, “The Relationship of the Crown Attorney to the Attorney General” CR (NS) (1976): 259; R. Camille Cameron, “Prosecutorial Control in Canada: The Definition of Attorney General in Section 2 of the Criminal Code” UNB LJ 30 (1981): 43; Law Reform Commission of Canada, Controlling Criminal Prosecutions: The Attorney General and the Crown Prosecutor, Working Paper 62 (Ottawa: The Commission, 1990); Bruce P. Archibald, “The Politics of Prosecutorial Discretion: Institutional Structures and the Tensions between Punitive and Restorative Paradigms of Justice” Can Crim L Rev 3 (1998): 69; Lori Sterling and Heather MacKay, “Constitutional Recognition of the Role of the Attorney General in Criminal Prosecutions: Krieger v. Law Society of Alberta” SCLR (2d) 20 (2003): 169 [Sterling & MacKay].

[14] See, e.g., Kate Bezanson, “Constitutional or Political Crises? Prosecutorial Independence, the Public Interest, and Gender in the SNC-Lavalin Affair” UBC L Rev 52 (2019): 761; Michael Murphy, “The Attorney General, Politics, and the Public Interest: Contributions to an Evolving Constitutional Convention” CJLS 37, no. 2 (2022): 209.

[15] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. See, e.g., Ian G. Scott, “The Role of the Attorney General and the Charter of Rights” Crim LQ 29 (1986–7): 187 [Scott, “Role and Charter”]; Hon. Ian Scott, “Law, Policy, and the Role of the Attorney General: Constancy and Change in the 1980s” UTLJ 39 (1989): 109 [Scott, “Constancy and Change”]; Grant Huscroft, “The Attorney General and Charter Challenges to Legislation: Advocate or Adjudicator?” NJCL 5 (1995): 125 [Huscroft, “Advocate or Adjudicator”] (now Justice Huscroft of the Court of Appeal for Ontario); Edwards in Sharpe, supra note 11; Kent Roach, “The Attorney General and the Charter Revisited” UTLJ 50, no. 1 (2000): 1; Mark J. Freiman, “Convergence of Law and Policy and the Role of the Attorney General” SCLR (2d) 16 (2002): 335; Grant Huscroft, “Reconciling Duty and Discretion: The Attorney General in the Charter Era” Queen’s LJ 34 (2009): 773 [Huscroft, “Duty and Discretion”]; Kent Roach, “Not Just the Government’s Lawyer: The Attorney General as Defender of the Rule of Law” Queen’s LJ 31, no. 2 (2006): 598 [Roach, “Not Just”].

[16] See, e.g., Adam M. Dodek, “Canadian Legal Ethics: A Subject in Search of Scholarship” UTLJ 50 (2000): 115 [Dodek, “Search”].

[17] See, e.g., Jody Wilson-Raybould, “Indian” in the Cabinet: Speaking Truth to Power (Toronto: HarperCollins, 2021); Ian Scott with Neil McCormick, To Make a Difference: A Memoir (Toronto: Stoddart, 2001) [Scott, To Make a Difference]; Roy McMurtry, Memoirs and Reflections (Toronto: University of Toronto Press for the Osgoode Society for Canadian Legal History, 2013) [McMurtry, Memoirs]; Michael Bryant, 28 Seconds: A True Story of Addiction, Tragedy, and Hope (Toronto: Viking, 2012) [Bryant, True Story]; Scott, “Role and Charter,” supra note 15; Scott, “Constancy and Change,” supra note 15. But for historical accounts, see Paul Romney, Mr Attorney: The Attorney General for Ontario in Court, Cabinet, and Legislature, 1791–1899 (Toronto: The Osgoode Society, 1986). (See also J. Murray Beck, “Rise and Fall of Nova Scotia’s Attorney General: 1749–1983” Dal LJ 8, no. 3 (1984): 125).

[18] But see especially Brent Cotter, “The Prime Minister v the Chief Justice of Canada: The Attorney General’s Failure of Responsibility” Leg Ethics 18 (2015): 73.

[19] See, e.g., Adam Dodek, “The Impossible Position: Canada’s Attorney-General Cannot Be Our Justice Minister” The Globe and Mail (22 February 2019) O1, 2019 WLNR 5866240, online: The Globe and Mail <https://www.theglobeandmail.com/opinion/article-the-impossible-position-canadas-attorney-general-cannot-be-our/> [https://perma.cc/U3TK-263K] [Dodek, “Impossible”].

[20] I nonetheless note that former Attorney General for Ontario Roy McMurtry has criticized the province’s move to the single title. See McMurtry, Memoirs, supra note 17 at 188: “This dual title has been the tradition in most, if not all, of the Canadian provinces, but in Ontario the justice title was dropped during a temporary reorganization of government and, regrettably, never restored.”

[21] See, e.g., Alice Woolley, “Introduction to Legal Ethics” in Lawyers’ Ethics and Professional Regulation, ed. Alice Woolley, Richard Devlin, and Brent Cotter (Toronto: Lexis Nexis Canada, 2021), 1 at 8: “The definition of “legal ethics” has engaged and troubled academic commentators for many years.”

[22] While the origins of this phrase are unclear, see, e.g., Geoffrey C. Hazard Jr. and W. William Hodes, The Law of Lawyering (New York: Harcourt Brace Jovanovich, 1985). See, e.g., Dodek, “Ready,” supra note 12 at 6 [citations omitted]: “[L]egal ethics consists of much more than ‘the law governing lawyers.’ Legal ethics is concerned not only with the positivist inquiry of what is, but very much with the normative inquiry of what ought to be.” On the relationship between legal ethics and philosophy, and specifically political philosophy and moral philosophy, see, e.g., Alice Woolley, “Legal Education Reform and the Good Lawyer” Alta L Rev 51, no. 4 (2014): 801, 809.

[23] Alice Woolley and Amy Salyzyn, Understanding Lawyers’ Ethics in Canada, 3rd ed. (Toronto: LexisNexis, 2023), 2–3. See also Frederick C. DeCoste, “From Formalism to Feminism: Seventy-Five Years of Theory in the Legal Academy” Alta L Rev 35, no. 1 (1996): 189 at 198–9, dismissing a formalist approach to legal ethics: “Sucked dry of politics and morality, and abstracted from normative standards, legal ethics becomes reduced to technology and instead of standing for something, lawyers merely are those expert in the manipulation of law’s autarkic currency.”

[24] Dodek, “Search,” supra note 16.

[25] Dodek, “Ready,” supra note 12 at 7 [emphasis in original].

[26] But see, e.g., in the US context Diana N. Viggiano, “Aiming the Canons at the General: How Should Traditional Canons of Legal Ethics Guide and Constrain an Attorney General” Geo J Leg Ethics 22, no. 3 (2009): 1193, focusing on the investigative and prosecutorial roles.

[27] Ministry of the Attorney General Act, RSO 1990, c M.17, s 5 [Ontario MAG Act]. See also, e.g., Department of Justice Act, RSC 1985, c J-2, s 5 [Federal DOJ Act]; An Act Respecting the Role of the Attorney General, RSNB 2011, c 116, s 2 [NB AG Act]; The Department of Justice Act, CCSM c J35, s 2.1 [MB DOJ Act]; Attorney General Act, RSBC 1996, c 22, s 2 [BC AG Act]; Department of Justice Act, RSY 2002, c 55, s 7 [YK DOJ Act]. See Bryant, True Story, supra note 17 at 287: “Consider my A.-G. duties, helpfully set forth in a statute. The breadth of these duties was daunting and inspiring for me when I first read them.”

[28] Ontario, Royal Commission: Inquiry into Civil Rights: Report One (Toronto: Queen’s Printer for Ontario, 1968) (Hon. James Chalmers McRuer, Commissioner), vol. 2 at 954 [McRuer]. See also 956, Recommendation 11: “Statutory provision should be made that the Attorney General must be a member of the Bar of Ontario.” Patrick Boyer, in his biography of McRuer, wrote that this recommendation was made “[i]n a drive to consolidate responsibility”: J. Patrick Boyer, A Passion for Justice: The Legacy of James Chalmers McRuer (Toronto: University of Toronto Press for the Osgoode Society for Canadian Legal History, 1994), 311.

[29] See, e.g., Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43 at para. 35; R v. Thompson (1913), 7 Alta LR 40 at 49, 14 DLR 175 (CA).

[30] Legal Profession Act, SNS 2004, c 28, s 16(1) [Legal Profession Act]. See in parallel Law Society Act, RSO 1990, c L.8 [Law Society Act], which does not define the practice of law but does define the provision of legal services at s 1(5): “a person provides legal services if the person engages in conduct that involves the application of legal principles and legal judgment with regard to the circumstances or objectives of a person.”

[31] That other government positions with administration-of-justice mandates may involve specific aspects of the practice of law does not mean that those positions also practise law. Indeed, those positions are often exempted in statute from the practice of law or from the prohibition on the unlicensed practice of law. See, e.g., Legal Profession Act, supra note 30, ss 16(j)(k) (federal or provincial legislators or municipal councillors assisting constituents).

[32] Ontario MAG Act, supra note 27, s 5(h).

[33] Hon. Brian R.D. Smith, QC, “The Role of the Attorney General – Or Walking the Tightrope” Advocate (Vancouver) 46, no. 2 (1988): 255 at 260.

[34] The Honourable Marc Rosenberg, “The Attorney General and the Administration of Criminal Justice” Queen’s LJ 34, no. 2 (2009): 813 at 847. Ian Scott himself recognized this concern. See Scott, To Make a Difference, supra note 17 at 150, discussing Reference re Bill 30, An Act to Amend the Education Act (Ont.), [1987] 1 SCR 1148, 40 DLR (4th) 18: “It was the only case I argued as attorney general, and I had to think long and hard before I did so. I did not want to be seen as grandstanding on a hot political issue.”

[35] Rosenberg, supra note 34 at 847–8.

[36] Smith, supra note 33 at 260; Rosenberg, supra note 34 at 848.

[37] Edwards in Sharpe, supra note 11 at 47.

[38] See, e.g., Andrew Flavelle Martin, “Does the Attorney General Have a Duty to Defend Her Legislature’s Statutes? A Comment on the Reference Re Genetic Non-Discrimination Act” Manitoba LJ 43, no. 2 (2021): 220.

[39] See, e.g., Huscroft, “Advocate or Adjudicator,” supra note 15; Huscroft, “Duty and Discretion,” supra note 15; Scott, “Role and Charter,” supra note 15.

[40] Askin v. Law Society of British Columbia, 2013 BCCA 233, leave to appeal to SCC refused, 35463 (7 November 2013). See chapter 6.

[41] See in parallel Adam M. Dodek, “Lawyering at the Intersection of Public Law and Legal Ethics: Government Lawyers as Custodians of the Rule of Law” Dal LJ 33, no. 1 (2010): 1 at 11 [Dodek, “Intersection”] on government lawyers [citation omitted]: “whole chapters in the applicable codes of conduct are absolutely irrelevant to government lawyers.”

[42] See above notes 32–6 and accompanying text.

[43] See, e.g., Federation of Law Societies of Canada, Model Code of Professional Conduct (Ottawa: FLSC, 2009, last amended October 2022), r 5.1, online: <flsc.ca> [FLSC Model Code]. See also Code of Professional Conduct of Lawyers, RLRQ c B-1, r 3.1, arts. 20, 23 [Quebec Code].

[44] See, e.g., R v. Neil, 2002 SCC 70 at para. 19.

[45] See, e.g., FLSC Model Code, supra note 43, r 2.1: “A lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity.” See also Quebec Code, supra note 43, arts. 4, 13, 20.

[46] FLSC Model Code, supra note 43, r 3.1-2: “A lawyer must perform all legal services undertaken on a client’s behalf to the standard of a competent lawyer.” See also Quebec Code, supra note 43, arts. 20 (“A lawyer owes his client duties of integrity, competence, loyalty, confidentiality, independence, impartiality, diligence and prudence”), 21 (“A lawyer must engage in his professional activities with competence”).

[47] FLSC Model Code, supra note 43, r 3.2-2, commentary 3. “Occasionally, a lawyer must be firm with a client. Firmness, without rudeness, is not a violation of the rule. In communicating with the client, the lawyer may disagree with the client’s perspective, or may have concerns about the client’s position on a matter, and may give advice that will not please the client. This may legitimately require firm and animated discussion with the client.”

[48] Ibid., r 3.1-2, commentary 6(b).

[49] See, e.g., ibid., r 5.1. See also Quebec Code, supra note 43, arts. 20, 23.

[50] FLSC Model Code, supra note 43, r 3.7-7(b).

[51] Ibid., r 3.7-2 and r 3.7-2, commentary 1. See also Quebec Code, supra note 43, art. 48(1).

[52] See, e.g., FLSC Model Code, supra note 43, r 3.7-1. See also Quebec Code, supra note 43, art. 51.

[53] On the exception to confidentiality, see FLSC Model Code, supra note 43, r 3.3-3. See also Quebec Code, supra note 43, art. 65(6). On the corresponding exception to privilege, see also Smith v. Jones, [1999] 1 SCR 455, 169 DLR (4th) 385. On the interaction between exceptions to privilege and exceptions to confidentiality, see Adam M. Dodek, Solicitor-Client Privilege (Toronto: LexisNexis Canada, 2014) at paras. 2.15–17.

[54] See chapter 5 and chapter 7.

[55] See, e.g., FLSC Model Code, supra note 43, r 7.5-2: “A lawyer must not communicate information to the media or make public statements about a matter before a tribunal if the lawyer knows or ought to know that the information or statement will have a substantial likelihood of materially prejudicing a party’s right to a fair trial or hearing.” See also r 7.5-2, commentary 1: “Fair trials and hearings are fundamental to a free and democratic society. It is important that the public, including the media, be informed about cases before courts and tribunals. The administration of justice benefits from public scrutiny. It is also important that a person’s, particularly an accused person’s, right to a fair trial or hearing not be impaired by inappropriate public statements made before the case has concluded.” See also Quebec Code, supra note 43, art 18: “A lawyer must not make public statements or communicate information to the media about a matter pending before a tribunal if the lawyer knows or should know that the information or statements could adversely affect a tribunal’s authority or prejudice a party’s right to a fair trial or hearing.”

[56] See, e.g., FLSC Model Code, supra note 43, r 5.6-1: “A lawyer must encourage public respect for and try to improve the administration of justice.” See also r 5.6-1, commentary 3. See also Quebec Code, supra note 43, art. 12: “A lawyer must support respect for the rule of law. However, he may, for good reason and by legitimate means, criticize a legal provision, contest the interpretation or application thereof, or seek to have it repealed, amended or replaced.”

[57] See, e.g., FLSC Model Code, supra note 43, r 7.2-1: “A lawyer must be courteous and civil and act in good faith with all persons with whom the lawyer has dealings in the course of his or her practice.” See also Quebec Code, supra note 43, arts. 4, 112.

[58] See, e.g., FLSC Model Code, supra note 43, r 5.6-1, commentary 3. See also Quebec Code, supra note 43, art. 12.

[59] See, e.g., FLSC Model Code, supra note 43, r 5.6-1.

[60] Craig E. Jones, “On the Attorney General, the Courts and the New Ministry of Justice” Advocate (Vancouver) 71, no. 2 (2013): 189 at 192.

[61] See, e.g., FLSC Model Code, supra note 43, r 5.1-3: “When acting as a prosecutor, a lawyer must act for the public and the administration of justice resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy and respect.” See also r 5.1-3, commentary 1: “When engaged as a prosecutor, the lawyer’s primary duty is not to seek to convict but to see that justice is done through a fair trial on the merits. The prosecutor exercises a public function involving much discretion and power and must act fairly and dispassionately.” See also Quebec Code, supra note 43, art. 112: “When acting as prosecutor in a criminal or penal matter, the lawyer must act in the public interest and in the interest of the administration of justice and the fairness of the judicial process.”

[62] Krieger v. Law Society of Alberta, 2002 SCC 65 at para. 3. As discussed by Sterling and MacKay, supra note 13 at 170, Ian Scott asserted this principle before its explicit recognition in Krieger: Scott, “Role and Charter,” supra note 15 at 191: “The absolute independence of the Attorney General on questions of prosecution policy is accepted as an important constitutional principle.”

[63] See, e.g., FLSC Model Code, supra note 43, r 7.2-3: “A lawyer must not use any device to record a conversation between the lawyer and a client or another lawyer, even if lawful, without first informing the other person of the intention to do so.”

[64] See, e.g., above note 5 and accompanying text on Jody Wilson-Raybould.

[65] See, e.g., FLSC Model Code, supra note 43, r 6.1-1: “A lawyer has complete professional responsibility for all business entrusted to him or her and must directly supervise staff and assistants to whom the lawyer delegates particular tasks and functions.” See also Quebec Code, supra note 43, art. 35: “A lawyer … is responsible for the mandate and must adequately supervise work performed by others who are collaborating with him in the performance of the mandate.”

[66] See note 101 below and accompanying text.

[67] See, e.g., FLSC Model Code, supra note 43, r 7.4-1. See also Quebec Code, supra note 43, art. 78.

[68] See, e.g., Andrew Flavelle Martin, “Legal Ethics versus Political Practices: The Application of the Rules of Professional Conduct to Lawyer-Politicians” Can Bar Rev 91, no. 1 (2013): 1 at 11–16.

[69] FLSC Model Code, supra note 43, rr 7.3-1, 7.3-2.

[70] See, e.g., Members’ Integrity Act, 1994, SO 1994, c 38, s 10(a): “A member of the Executive Council shall not … engage in employment or the practice of a profession.” While there is an exception where the minister receives approval from the Integrity Commissioner (s 13.1), the criteria for such an exception are strict and it is difficult to imagine a situation where the Attorney General could meet those criteria.

[71] FLSC Model Code, supra note 43, r 3.3-2. See also r 3.4-1, commentary 7: “The lawyer’s duty of confidentiality is owed to both current and former clients, with the related duty not to attack the legal work done during a retainer or to undermine the former client’s position on a matter that was central to the retainer.” See also Quebec Code, supra note 43, arts. 60 (“A lawyer must ensure the confidentiality of all information concerning the affairs and activities of a client of which the lawyer becomes aware in the course of the professional relationship”), 63 (“A lawyer must not use confidential information with a view to obtaining a benefit for himself or for another person”), 65(1).

[72] Andrew Flavelle Martin, “From Attorney General to Backbencher or Opposition Legislator: The Lawyer’s Continuing Duty of Confidentiality to the Former Client” Manitoba LJ 43, no. 2 (2021): 247 [Martin, “Continuing Duty”].

[73] See, e.g., MacCharles & Campion-Smith, supra note 3; Andrew Flavelle Martin, “The Legal Ethics Implications of the SNC-Lavalin Affair for the Attorney General of Canada” Crim LQ 67, no. 3 (2019): 161 at 172–5.

[74] See, e.g., Martin, “Continuing Duty,” supra note 72 at 254–6.

[75] See generally Elizabeth Sanderson, Government Lawyering: Duties and Ethical Challenges of Government Lawyers (Toronto: LexisNexis Canada, 2018), 101–7 [Sanderson].

[76] See, e.g., FLSC Model Code, supra note 43, r 3.2-3: “Although a lawyer may receive instructions from an officer, employee, agent or representative, when a lawyer is employed or retained by an organization, including a corporation, the lawyer must act for the organization in exercising his or her duties and in providing professional services.” See also Quebec Code, supra note 43, art. 36: “Although a lawyer may receive instructions from a representative of the client with respect to the performance of the mandate, the lawyer must act for the client and serve and protect the client’s interests.”

[77] See, e.g., Memorandum of Understanding between the Attorney General of Ontario and the Chief Justice of the Ontario Court of Justice (16 August 2016) [AG-CJOCJ MOU], cl 2.3(j), online: <https://www.ontariocourts.ca/ocj/memorandum-of-understanding/> [https://perma.cc/E56T-PQ3V]: “The Ministry of the Attorney General is responsible for: … [p]roviding legal representation to all judicial officers, where appropriate, on matters that arise as a result of the performance of the official’s judicial functions. Where there is an apparent conflict of interest (as identified by the ministry, the affected judiciary or the Office of the Chief Justice), the Office of the Chief Justice will retain private sector legal counsel, in accordance with ministry policy.” See also, e.g., Baryluk (Wyrd Sisters) v. Campbell, 2008 CanLII 55134 (ON SC); Baryluk (Wyrd Sisters) v. Campbell, 2009 CanLII 34041 (ON SC) at para. 11. See also 2009 CanLII 34042 (costs order against counsel personally). The Attorney General may also fund outside counsel in these circumstances.

[78] Ontario MAG Act, supra note 27, s 5(d). The equivalent federal provision is discussed in Andrew Flavelle Martin, “The Attorney General’s Forgotten Role as Legal Advisor to the Legislature: A Comment on Schmidt v. Canada (Attorney General)” UBC L Rev 52, no. 1 (2019): 201 [Martin, “Forgotten Role”] at 216–18.

[79] John Ll. J. Edwards, The Attorney General, Politics and the Public Interest (London: Sweet & Maxwell, 1984), 207–35 [Edwards, Public Interest], as discussed, e.g., in Martin, “Forgotten Role,” supra note 78 at 216–18.

[80] Krieger, supra note 62 at para. 27, as discussed, e.g., in Martin, “Forgotten Role,” supra note 78 at 215.

[81] Huscroft, “Advocate or Adjudicator,” supra note 15 at 160–1, quoting from Stephen Bindman, “Appointment of Amicus Curiae Believed to Be Unprecedented” Law Times [Aurora] (15–21 November 1993) at 18, as quoted, e.g., in Andrew Flavelle Martin, “The Attorney General Is the Legislature’s Legal Advisor (Though Not Its Only Legal Advisor), Although That Role Is Admittedly Problematic and Should Probably Be Abolished: A Response to Steven Chaplin” JPPL 14, no. 3 (2020): 625 at 628 [Martin, “Response to Chaplin”]; Miron v. Trudel, [1995] 2 SCR 418, 124 DLR (4th) 693.

[82] Huscroft, “Advocate or Adjudicator,” supra note 15 at 128, discussed, e.g., in Martin, “Forgotten Role,” supra note 78 at 216; The Honourable R. Roy McMurtry, “The Office of the Attorney General,” in The Cambridge Lectures: Selected Papers Based upon Lectures Delivered at the Cambridge Conference of the Canadian Institute for Advanced Legal Studies, 1979, ed. Derek Mendes da Costa (Toronto: Butterworths, 1981), 1 at 1, discussed, e.g., in Martin, “Forgotten Role,” supra note 78 at 216. See also W. Kent Power, “The Office of Attorney General” Can Bar Rev 17, no. 6 (1939): 416 at 429: “His [the Attorney General’s] right and duty to advise the Legislature is also of very great importance.”

[83] Dodek, “Impossible,” supra note 19: “Justice ministers are expected to advise Parliament.” Dodek does, however, advocate change: “[W]e need a House of Commons and Senate who have independent legal advisers who are completely loyal to them. … The justice minister of the government of the day, representing the executive branch of government, simply should not be giving advice to the legislative branch.”

[84] Chaplin, supra note 8 at 190.

[85] Martin, “Forgotten Role,” supra note 78.

[86] Chaplin, supra note 8 at 190.

[87] Martin, “Response to Chaplin,” supra note 81.

[88] Ibid., 631.

[89] Andrew Flavelle Martin, “The Attorney General as Lawyer (?): Confidentiality upon Resignation from Cabinet” Dal LJ 38, no. 1 (2015): 147 at 162 [Martin, “Resignation”].

[90] See, e.g., FLSC Model Code, supra note 43, r 3.4-5, as discussed in Martin, “Resignation,” supra note 89 at 162. See also Quebec Code, supra note 43, art. 84.

[91] See, e.g., Sanderson, supra note 75 at xxiii: “public servants practicing law in the service of the Crown within the federal Department of Justice or within its provincial or territorial counterparts or within client departments.”

[92] See, e.g., McRuer, supra note 28, vol. 2 at 942, 948–9. See also 957, Recommendation 8: “The legal services of the government should be reorganized so that all legal services come under the direction of the Attorney General.”

[93] Dodek, “Intersection,” supra note 41 at 20–1; Sanderson, supra note 75 at 2, 48.

[94] See, e.g., Andrew Flavelle Martin, “Loyalty, Conscience, and Withdrawal: Are Government Lawyers Different?” Manitoba LJ 46, no. 3 (2023): 1; Andrew Flavelle Martin, “Legal Ethics for Government Lawyers: Confronting Doctrinal Gaps” Alta L Rev 60, no. 1 (2022): 169; Martin, “Where Are We Going?” supra note 12 at 322; Andrew Flavelle Martin, “Legal Ethics and the Political Activity of Government Lawyers” Ottawa L Rev 49, no. 2 (2018): 263 [Martin, “Political Activity”]; Andrew Flavelle Martin, “The Government Lawyer as Activist: A Legal Ethics Analysis” Windsor Rev Leg Soc Issues 41 (2020): 28.

[95] See, e.g., Sanderson, supra note 75 at 211–26 (chapter 5), esp. at 214–15. In Nunavut, the separation of the civil service from the political level, in which the role of the Deputy Attorney General is critical, is recognized in the context of the lawyer’s duty to report up within the organizational client. See Law Society of Nunavut, Code of Professional Conduct (Nunavut: LSN, 2016, last amended 2022), online: <https://www.lawsociety.nu.ca/sites/default/files/public/NU%20Code%20of%20Conduct_%20Adopted%20June%2016%202022%20FINAL.pdf>, r 3.2-8, commentary 5.1 “A lawyer in government service or acting for a government or public body should be aware of and respect the separation of the public service from the political level. While such a lawyer must advise progressively the next highest person within the public service and use any other mechanisms lawfully available to them, the lawyer should not violate the separation of the public service from the political level unless authorized to do so.”

[96] See, e.g., Sanderson, supra note 75 at 213, citing Osborne v. Canada (Treasury Board), [1991] 2 SCR 69, 82 DLR (4th) 321.

[97] See, e.g., Ontario MAG Act, supra note 27, s 3; Sanderson, supra note 75 at 214.

[98] See, e.g., Public Service of Ontario Act, 2006 [PSOA], s 2, being Schedule A to the Public Service of Ontario Statute Law Amendment Act, 2006, SO 2006, c 35.

[99] See, e.g. PSOA, supra note 98, s 85(2). See also Sanderson, supra note 75 at 215.

[100] I by no means suggest that the Deputy Attorney General is not important or worthy of further study.

[101] See, e.g., FLSC Model Code, supra note 43, r 6.1-1 (“A lawyer has complete professional responsibility for all business entrusted to him or her and must directly supervise staff and assistants to whom the lawyer delegates particular tasks and functions”; r 6.2-2, commentary 1 (“A principal or supervising lawyer is responsible for the actions of students acting under his or her direction”) and Law Society of Ontario v. Forte, 2019 ONLSTH 9. Contrast, e.g., r 3.3, commentary 9: “[T]his implied authority to disclose [confidential information] places the lawyer under a duty to impress upon associates, employees, students and other lawyers engaged under contract with the lawyer or with the firm of the lawyer the importance of non disclosure (both during their employment and afterwards) and requires the lawyer to take reasonable care to prevent their disclosing or using any information that the lawyer is bound to keep in confidence.”

[102] Quebec Code, supra note 43, art. 5.

[103] Ibid., art. 6.

[104] Sanderson, supra note 75 at 219.

[105] See, e.g., FLSC Model Code, supra note 43, r 3.1-2, commentary 6.

[106] See, e.g., Deborah MacNair, “Crown Prosecutors and Conflict of Interest: A Canadian Perspective” Can Crim L Rev 7 (2002): 257 at 278; Sanderson, supra note 75 at 27–30.

[107] But see Sanderson, supra note 75 at 29, on the separation of the two roles in the federal context: “there is actually considerable overlap between the express legal advisory duties assigned to each hat under the [federal] Department of Justice Act, and only one Department of Justice to fulfill the entirety of the public law functions.”

[108] See ibid. at 29–30. See, e.g., Federal DOJ Act, supra note 27, s 2(2): “The Minister is ex officio Her Majesty’s Attorney General of Canada, holds office during pleasure and has the management and direction of the Department.”

[109] See, e.g., Sanderson, supra note 75 at 39–40.

[110] See, e.g., Peter W. Hogg and Wade Wright, Constitutional Law of Canada, vol. 2, 5th ed. supp. (Toronto: Thomson Reuters, 2023) at § 59:4 [Hogg and Wright].

[111] Scott, “Constancy and Change,” supra note 15 at 112.

[112] See Scott, “Role and Charter,” supra note 15 at 105: “no direct conflict would arise if, in selecting between two possible courses of action, both of which were considered constitutional by the Attorney General, the government chose to reject the Attorney General’s policy preference.”

[113] See, e.g., Hogg and Wright, supra note 110, vol. 1 at § 9:7. See also Scott, “Constancy and Change,” supra note 15 at 115; Smith, supra note 33 at 257; Edwards, Law Officers, supra note 10 at 11, 224–5, and especially at 390 regarding the responsibility of the Attorney General for decisions of the Director of Public Prosecutions.

[114] See, e.g., Dodek, “Impossible,” supra note 19.

[115] See, e.g., Hogg and Wright, supra note 110, vol. 1 at § 36:11 [citations omitted]: “[T]he Attorney General advises the Prime Minister or Premier on the legality of whatever is proposed by the government. In fulfilling this role the Attorney General acts with a degree of independence from the other ministers in the cabinet. By long tradition, the Attorney General upholds the rule of law, which means that he or she is under a duty to provide objective legal advice in order to make sure that government action complies with the Charter (and other laws). Canadian politicians understand that government is bound by the rule of law, and the Attorney General’s advice on legal issues, even if it is unwelcome from a policy standpoint, normally has to be accepted by cabinet.” See also Mark Freiman, “Convergence of Law and Policy and the Role of the Attorney General” SCLR (2d) 16 (2002): 335 at 339 [Freiman]: “The legal analysis of the Chief Law Officer of the Crown may not necessarily always be welcomed by government, but it is uniformly accepted notwithstanding its potentially limiting effect on policy choices.”

[116] See, e.g., Hogg and Wright, supra note 110, vol. 1 at § 36:11; Freiman, supra note 115 at 338–9; Scott, “Constancy and Change,” supra note 15 at 120–1; McMurtry, supra note 82 at 2.

[117] Krieger, supra note 62 at para. 3.

[118] See, e.g., FLSC Model Code, supra note 43, r 3.1-2, commentary 10: “In addition to opinions on legal questions, a lawyer may be asked for or may be expected to give advice on non-legal matters such as the business, economic, policy or social complications involved in the question or the course the client should choose. In many instances the lawyer’s experience will be such that the lawyer’s views on non-legal matters will be of real benefit to the client.”

[119] FLSC Model Code, supra note 43, r 3.1-2, commentary 10: “The lawyer who expresses views on such matters should, if necessary and to the extent necessary, point out any lack of experience or other qualification in the particular field and should clearly distinguish legal advice from other advice.” See also Scott, “Role and Charter,” supra note 15 at 105: “In cases where legal and social policy is closely intertwined, as will often be the case in situations involving the Charter of Rights, the Attorney General must take care, in giving advice, to distinguish between legal opinion and policy preference.”

[120] See, e.g., Dodek, “Impossible,” supra note 19.

[121] The Hon. A. Anne McLellan, Review of the Roles of the Minister of Justice and Attorney General of Canada (28 June 2019) at 31, online: Government of Canada <https://www.pm.gc.ca/en/news/backgrounders/2019/08/14/review-roles-minister-justice-and-attorney-general-canada> [https://perma.cc/KE4U-TN8W]. I participated in a round-table briefing for McLellan’s report.

[122] See generally Eric Colvin, “The Executive and the Independence of the Judiciary” Sask L Rev 51, no. 2 (1986): 229 at 242–8. See, e.g., McMurtry, Memoirs, supra note 17 at 184: “Early on in my tenure as attorney general, I became concerned about the apparent conflict of interest as I administered the courts in which my ministry was also a major litigant.” See also, e.g., R v. Bodner, 2003 ABCA 102 (chambers judge holding that they could not hear a stay application because their decision could reduce courts funding on which they relied). Thanks to a reviewer for bringing this case to my attention. While the case law on judicial independence is clear that financial independence has an “institutional or collective dimension,” with respect (and for understandable reasons) the courts have largely left untouched the inherent problem alluded to in Bodner, that is, that the courts are reliant for their funding on the decisions of the most common litigant appearing before them. (Note that the judge in Bodner held that the Supreme Court of Canada would not face the same conflict as it was not funded by the Alberta government, at para. 31 [“Although the Supreme Court may also have an interest in the outcome, the application does not directly threaten the Supreme Court’s budget. Thus, the public’s perception of partiality would be reduced.”]) This issue, as opposed to its management, is beyond the scope of this book.

[123] See, e.g., Dodek, “Impossible,” supra note 19: “The answer for why the two offices are combined is simple, if unsatisfying: That’s the way it has always been in Canada, and because the combined role is what the law dictates, according to the Department of Justice Act.”

[124] See, e.g., AG-CJOCJ MOU, supra note 77; Courts of Justice Act, RSO 1990, c C.43, ss 71, 72, 77; R v. Turtle, 2020 ONCJ 429 at paras. 128–9: “As late as 1990, the Attorney General of Ontario was largely responsible for the administration of courts in this province. The judiciary in Ontario were effectively a branch of the Attorney General’s office. At the same time Judges sat in judgement on matters where the Attorney General’s actions were the subject of the dispute. In those circumstances, Judicial independence, while valued as an important constitutional principle, was always subject to the appearance of conflict, if not actual conflict. To remedy this problem, in 1990, the Attorney General and the Chief Justice of the Ontario Court of Justice, in the first agreement of its kind in Canada, entered into a Memorandum of Understanding that clarified their respective roles and how to manage their relationship.” See also Roslyn J. Levine, “Straddling the Middle: The Superior Court’s Executive Legal Officer” JPPL 12 (2018): 165 at 171.

[125] Scott, “Constancy and Change,” supra note 15 at 122.

[126] McLellan, supra note 121 at 43, note 107.

[127] See above note 69 and accompanying text.

[128] See Hogg and Wright, supra note 110, vol. 1 at § 9:7.

[129] See, e.g., Edwards in Sharpe, supra note 11 at 56–7.

[130] See, e.g., Hogg and Wright, supra note 11, vol. 1 at § 9:3.

[131] See, e.g., Jonathan Malloy, The Paradox of Parliament (Toronto: University of Toronto Press, 2023) at 67, 79, 134, 226.

[132] See, e.g., Ned Franks, “Parliamentarians and Codes of Ethics” JPPL 2 (2009): 283 at 291: “Ministers are not like ordinary members of parliament when they contact departments and other agencies of government. They, and especially the prime minister, speak with power to coerce, reward, and punish. Nor are their staff in the same position as the staff of ordinary MPs.” See also, e.g., Ian MacKenzie, “Under the Influence: Ministers (and Others) Communicating with Tribunals” (14 March 2023), online (blog): Slaw <https://www.slaw.ca/2023/03/14/under-the-influence-ministers-and-others-communicating-with-tribunals/> [https://perma.cc/KW4K-6FQP]: “Members of Parliament are expected to advocate for their constituents. However, when that MP is a Minister of the Crown (or a Parliamentary Secretary) there are limits on how far that advocacy can go.”

[133] See, e.g., Legal Profession Act, SNS 2004, c 28, s 16(4)(j) [NS Legal Profession Act]: “this Act does not prohibit … a member of (i) the House of Commons of Canada, (ii) the House of Assembly, or (iii) a council of a municipality, from acting as an advocate or representative of a person in the member’s capacity as an elected representative.”

[134] See, e.g., ibid., s 7(1)(b); Law Society Act, supra note 30, ss 12(1), (2).

[135] But see A.G. Can. v. Law Society of B.C., [1982] 2 SCR 307 at 335–6, 137 DLR (3d) 1, where Estey J., writing for the Court, holds that the Attorney General’s role as an ex officio bencher is one of several legitimate “protective restraints” on self-governance as a manifestation of the independence of the bar: “The independence of the Bar from the state in all its pervasive manifestations is one of the hallmarks of a free society. Consequently, regulation of these members of the law profession by the state must, so far as by human ingenuity it can be so designed, be free from state interference, in the political sense, with the delivery of services to the individual citizens in the state, particularly in fields of public and criminal law. The public interest in a free society knows no area more sensitive than the independence, impartiality and availability to the general public of the members of the Bar and through those members, legal advice and services generally. … Having said all that, it must be remembered that the assignment of administrative control to the field of self-administration by the profession is subject to such important protective restraints as … the presence of the Attorney General as an ex officio member of the Benchers.” (But see, e.g., Alice Woolley, “Lawyers and the Rule of Law: Independence of the Bar, the Canadian Constitution and the Law Governing Lawyers” NJCL 34 (2015): 49 at 54, note 27: “Self-government may be a useful means to accomplish independence; the point here is only that it is not an essential or necessary feature of lawyerly independence.”)

[136] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, no. 5, ss 92(13), 92(14), as discussed, e.g., in Law Society of BC v. Mangat, 2001 SCC 67 at paras. 38–46.

[137] Law Society Act, supra note 30, s 13(1). This provision is discussed in more detail in chapter 5. See also Legal Profession Act, RSY 2002, c 134, s 106(1) [Yukon Legal Profession Act]: “The Minister shall serve as a guardian of the public interest in all matters within the scope of this Act.”

[138] See generally Craig E. Jones, “The Attorney General’s Standing to Seek Relief in the Public Interest: The Evolving Doctrine of Parens Patriae” Can Bar Rev 86, no. 1 (2007): 121; Scott, “Role and Charter,” supra note 15 at 196–9. With respect to charities, see, e.g., Kathryn Chan, “The Role of the Attorney General in Charity Proceedings in Canada and in England and Wales” Can Bar Rev 89 (2011): 373 [Chan]. See, e.g., Hogg and Wright, supra note 110, vol. 1 at § 59:4.

[139] See, e.g., Chan, supra note 138.

[140] See, e.g., Roach, “Not Just,” supra note 15.

[141] See, e.g., Ontario MAG Act, supra note 27, s 5(b); Federal DOJ Act, supra note 27, s 4(a); NB AG Act, supra note 27, s 2(a); MB DOJ Act, supra note 27, s 2(b); BC AG Act, supra note 27, s 2(b); YK DOJ Act, supra note 27, s 6(a).

[142] Sanderson, supra note 75 at 32–3.

[143] See, e.g., FLSC Model Code, supra note 43, rr 3.2-7 (“A lawyer must never: a) knowingly assist in or encourage any dishonesty, fraud, crime, or illegal conduct. b) do or omit to do anything that the lawyer ought to know assists in or encourages any dishonesty, fraud, crime, or illegal conduct by a client or others, or c) instruct a client or others on how to violate the law and avoid punishment”), 3.2-8 (requirement of reporting up where “a lawyer who is employed or retained by an organization to act in a matter in which the lawyer knows that the organization has acted, is acting or intends to act dishonestly, fraudulently, criminally, or illegally,” culminating in withdrawal if the client persists).

[144] Sanderson, supra note 75 at 32, 33.

[145] Scott, “Role and Charter,” supra note 15 at 189, 193.

[146] See above note 107.

[147] See, e.g., Alice Woolley, “Legal Ethics and Regulatory Legitimacy: Regulating Lawyers for Personal Misconduct,” in Alternative Perspectives on Lawyers and Legal Ethics: Reimagining The Profession, ed. Francesca Bartlett, Reid Mortensen, and Kieran Tranter (Oxford: Routledge, 2011), 241; Duncan Webb, “Nefarious Conduct and the ‘Fit and Proper Person’ Test,” in Alternative Perspectives on Lawyers and Legal Ethics: Reimagining the Profession, ed. Francesca Bartlett, Reid Mortensen, and Kieran Tranter (Oxford: Routledge, 2011), 218.

[148] See, e.g., FLSC Model Code, supra note 43, r 7.4-1, commentary 1: “Because such a lawyer [in public office] is in the public eye, the legal profession can more readily be brought into disrepute by a failure to observe its ethical standards.” See also Quebec Code, supra note 43, art. 78.

[149] FLSC Model Code, supra note 43, r 7.4-1, commentary 2.

[150] Ibid., r 5.6-1, commentary 1. See also Quebec Code, supra note 43, art. 12.

[151] Edwards, Public Interest, supra note 79 at 67, quoted, e.g., in McLellan, supra note 121 at 11 and in Sanderson, supra note 75 at 69. See similarly John Ll. J. Edwards, “The Charter, Government and the Machinery of Justice” UNB LJ 36 (1987): 41 at 50: “The experience of both the older and newer members of the Commonwealth confirms my deep-seated conviction that, no matter how entrenched constitutional safeguards may be, in the final analysis it is the strength of character, personal integrity and personal commitment by the holder to the independent character of the Offices of Attorney-General … and of the Director of Public Prosecutions which is of abiding importance.” Sanderson, supra note 75 at 226 makes a similar point about the Deputy Attorney General: “Regardless how the role of the Justice Deputy Ministers and Deputy Attorney Generals is delineated in the law or literature, much of its success – or failure – comes down ultimately to the integrity of the individual in the job.”

[152] Scott, “Constancy and Change,” supra note 15 at 122.