The Attorney General and the Duty to Encourage Respect for the Administration of Justice

After I wrote this column but before it went to press, my colleague Brandon Trask of UManitoba posted a similar column to the RobsonCrim blog. To the extent that I repeat some points he’s made, that repetition is valuable and worthwhile. I encourage readers to check it out.

What should and must a lawyer do when their client, or the representative of their client, attacks judges and large unidentified swaths of the entire bench? What if the lawyer is standing next to them when they do so? What if the lawyer is the Attorney General and the speaker is the Premier?

Attorneys General, like all lawyers, have a positive duty to encourage respect for the administration of justice.[1] This includes a duty to defend judges against unfair criticism.[2] The reality for most lawyers is that this is mostly a negative duty, i.e. a duty not to discourage respect for the administration of justice than to actively encourage such respect. But for the Attorney General, a high-profile lawyer who serves as Chief Law Officer of the Crown, this duty is and should be considered a positive one. When the Premier speaks, the public and the media listen – as they do when the Attorney General speaks or remains silent in response.

On April 30 2025, Ontario Premier Doug Ford gave a press conference in which he reportedly characterized judicial independence as a “joke”; accused judges and justices of the peace of interfering with his priorities and being soft on crime; advocated for judges to be elected; and expressed his desire to give judges he disliked a financial incentive to retire early. He even reportedly expressed interest in posting the names of those who release folks on bail who then go on to commit other crimes.[3] In short, the Premier explicitly questioned the general independence and financial independence of Ontario judges and justices of the peace and suggested actions that could reasonably (though certainly not intentionally) endanger their physical safety and that of their families.

What does this mean?

First, every competent criminal lawyer appearing before the Ontario Court of Justice for the foreseeable future will consider arguing that the Premier’s remarks mean that that court is no longer “an independent and impartial tribunal” for the purposes of section 11(d) of the Canadian Charter of Rights and Freedoms, and therefore their client cannot receive a fair hearing. Out of respect for the provincial bench and confidence that those judges and justices of the peace will ignore Premier Ford completely, these lawyers will refer not to actual bias but instead to a reasonable apprehension of bias. And most if not all judges and justices of the peace will determine that they can proceed to hear the matter. The issue will still be raised. And the damage to public confidence will have been done. But put that aside for the moment.

Less obvious but perhaps more important are the implications for the Attorney General of Ontario, who was not only present at the press conference but reportedly joked that “You should see what he [Premier Ford] says in private”.[4] It would have been problematic enough if Attorney General Doug Downey had remained silent – ideally, ashenly stone-faced. But instead he (1) made a joke about the Premier’s comments (thus appearing to downplay their inappropriateness and seriousness) (2) in which he suggested that Premier Ford’s true beliefs were even more extreme.

As I have argued elsewhere, in this kind of situation, the Attorney General should caution the Premier in private and, if the Premier declines to rectify the situation themselves, should publicly affirm the government’s commitment to judicial independence and even critique the comments. If the Attorney General determines that they cannot do so because of their duty of loyalty, then they should resign.[5] Keep in mind that as a lawyer for an organizational client, the Attorney General owes their duties to the client – the Crown in right of the province – and not to the Premier.[6] And while the two may be synonymous in many situations, they are certainly not synonymous here. For all we know, Attorney General Downey has privately cautioned the Premier about judicial independence since, and likely before, this incident. But any such cautions have proved inadequate. Attorney General Downey has a choice to make about resignation. So far he has chosen poorly.

As professionals, lawyers are held to a standard of competence, not perfection.[7] It would be quite understandable and meaningful if, after careful reflection in the ensuing days, Attorney General Downey had attempted to rectify his shortcomings made in that moment. To state, as he did the next day in response to a media question, that “I think the frustration that it comes from is real”, while affirming that the government will not pursue these changes, is simply inadequate in the circumstances.[8]

I write this with no animus towards Attorney General Downey. I do not envy him for the situation in which he found himself and the immediacy of the circumstances. Indeed, although I’d like to imagine that I would have done something better myself in those shoes, I’m far from sure that I would have.

Moreover, it is not for me to adjudicate the matter. I am not a judge, or a Law Society bencher, or a tribunal member. Nonetheless, lawyers have duties, and in my opinion, for whatever that opinion is worth, the Attorney General breached his duties in this instance.

The cold reality: it is virtually certain that Attorney General Downey will not face consequences from the Law Society of Ontario, as his professional regulator, for his actions and inaction in this incident. That would likely be true even if the Ontario legislation on the legal profession did not explicitly preclude such consequences.[9] Indeed, with the exception of controversial ongoing proceedings against a former Alberta Minister of Justice,[10] there have only been two instances in which a Canadian law society has attempted to discipline an Attorney General – and both were ultimately unsuccessful.

But that does not mean that Attorney General Downey should not be held accountable in the Legislative Assembly and in the media. As I have written elsewhere: “While I cheerfully admit to being romantic and idealistic, there is nothing romantic or idealistic about the accountability of the Attorney General for violations of the law of lawyering.”[11] And certainly not for a government purportedly intent on “accountability” – at least for judges they disagree with.

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[1] See e.g. Federation of Law Societies of Canada, Model Code of Professional Conduct (Ottawa: FLSC, 2009, last amended April 2024) [FLSC Mode Code], r 5.6-1, online: <https://flsc.ca/wp-content/uploads/2024/11/2024-Model-Code-of-Professional-Conduct.pdf>: “A lawyer must encourage public respect for and try to improve the administration of justice.”

[2] See e.g. FLSC Model Code, r 5.6-1, commentary 3: “[W]hen a tribunal is the object of unjust criticism, a lawyer, as a participant in the administration of justice, is uniquely able to, and should, support the tribunal, both because its members cannot defend themselves and because, in doing so, the lawyer contributes to greater public understanding of, and therefore respect for, the legal system.”

[3] Adam Carter, “Ford rants about ‘bleeding-heart judges’ who are ‘overruling the government’” CBC News (30 April 2025), online: <https://www.cbc.ca/news/canada/toronto/doug-ford-ontario-judges-bail-reform-1.7522701> https://perma.cc/XH8E-9ZD2.

[4] Ibid [Carter].

[5] Andrew Flavelle Martin, Legal Ethics and the Attorney General: A Canadian Analysis (Toronto: University of Toronto Press, 2025) at 55-56. See also 58: “The lawyer must make good-faith efforts to urge the client to discontinue and apologize for such criticism. If those efforts are unsuccessful, the lawyer must repudiate that criticism themselves or, if they are unable to do so because of the duty of loyalty, withdraw. For an Attorney General, such withdrawal in turn likely leads to resignation.” Indeed, I explicitly described Downey’s response to Ford’s previous similar comments as appropriate.

[6] See e.g. FLSC Model Code, 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.”

[7] See e.g. FLSC Model Code, rr 3.1-2, 3.1-2 commentary 15.

[8] Liam Casey & Allison Jones (Canadian Press), “Ontario to examine involuntary addiction treatment for people in jail, on parole, probation” CBC News (1 May 2025), online: <https://www.cbc.ca/news/canada/toronto/ontario-involuntary-addiction-treatment-1.7523729> https://perma.cc/RAV8-68UH.

[9] Law Society Act, RSO 1990, c L.8, s 13(3) (“No person who is or has been the Attorney General for Ontario is subject to any proceedings of the Society or to any penalty imposed under this Act for anything done by him or her while exercising the functions of such office.”), as discussed e.g. in Martin, supra note 5 at 112-116. Ontario is unique among Canadian provinces and territories in this respect.

[10] Law Society of Alberta v Madu, 2024 ABLS 20.

[11] Martin, supra note 5 at 4.