McLellan advises against splitting roles of attorney general, justice minister

The dual role of Canada's attorney general and justice minister that's now carried out by the same cabinet minister doesn't need to be split, according to a new report by Anne McLellan, the former Liberal cabinet minister and deputy prime minister.

"I do not believe that further structural change is required in Canada to protect prosecutorial independence and promote public confidence in the criminal justice system," McLellan wrote in the report released Wednesday.

"The model of having the same person hold the minister of justice and attorney general roles was deliberately chosen at Confederation, and for good reason. Our system benefits from giving one person responsibility for key elements of the justice system."

McLellan's report and recommendations were completed June 28 and made public just hours after the release of a scathing report by the federal ethics commissioner on the SNC-Lavalin affair.

Mario Dion found Prime Minister Justin Trudeau violated the Conflict of Interest Act by trying to influence then justice minister Jody Wilson-Raybould to overrule a decision by the director of public prosecutions to not grant a deferred prosecution agreement to the Quebec-based engineering firm.

Earlier this year, Trudeau had asked McLellan to look into whether the cabinet roles of justice minister and attorney general should be reformed in the wake of allegations of political interference.

On Tuesday, the prime minister had said he would make public McLellan's findings after the ethics watchdog released his own report into the SNC-Lavalin affair.

McLellan said it's important for the attorney general to remain in cabinet, and that removal would "affect the credibility and quality of legal advice they provide."

Cabinet colleagues are more likely to pay attention to the attorney general's legal advice because they understand "the political context in which they are operating," she wrote.

Key recommendations

Some of McLellan's other recommendations include:

• The attorney general develop a "detailed protocol" to govern ministerial consultations in specific prosecutions.
• An education program for parliamentarians, cabinet ministers and their staff on the role of the attorney general and related issues be implemented.
• The attorney general be encouraged to explain reasons for issuing a direction or taking over a prosecution, or when declining to do so, in cases that raise significant public interest.
• There be a new oath taken for the office to emphasize the unique role of the attorney general.
• The name of the Justice Department be changed to Department of Justice and Office of the Attorney General of Canada.

Before her appointment as special adviser, McLellan, who held the post of justice minister and attorney general from 1997 to 2002 under then prime minister Jean Chrétien, had voiced she backs the idea of looking at splitting the current role.

She also argued that when she served in the post, its dual nature made for better policy.

Dion, the ethics commissioner, found, "the authority of the prime minister and his office was used to circumvent, undermine and ultimately attempt to discredit the decision of the director of public prosecutions as well as the authority of Ms. Wilson‑Raybould as the Crown's chief law officer."

Among her other recommendations, McLellan advised it should be made clearer that "virtually all prosecutorial decisions are made by the director of public prosecutions and their designated agents, without any involvement by the attorney general."

As well, McLellan said, it should be "emphasized that while the attorney general has the power to issue directions in specific cases or take over a prosecution, this power is exercised only in exceptional cases, and in fact has never been used at the federal level."

Speaking to reporters in Niagara-on-the-Lake, Ont., where he fielded questions about the ethics commissioner's report, Trudeau said he looked forward to implementing McLellan's various recommendations.

But Conservative Leader Andrew Scheer dismissed McLellan's report, saying that he was never prepared to give any credence to it, and that Canadians were not interested in the findings of "Liberals who investigate other Liberals."

Meanwhile, NDP MP and justice critic Tracey Ramsey told CBC News Network that the release of McLellan's report was an attempt "to pivot away from the story."

"This was something that the Liberals chose to do to try to change the channel in the heat of the SNC-Lavalin scandal. And it didn't work then. It's not going to work today."