Mr. Speaker, I will share my time with the member for Spadina—Fort York.
Under the Department of Justice Act, the Minister of Justice is also the Attorney General of Canada. The two positions are distinct, even though they are held by the same person.
As the holder of both positions, the Minister of Justice and Attorney General of Canada has four main roles. First, the minister is the official legal adviser to the Government of Canada. Second, the minister is responsible for laws and policies relating to the justice portfolio. Third, the minister represents the Crown in all civil litigation. Fourth, the minister is the attorney general for all federal prosecutions.
The Minister of Justice is the official legal adviser to the Governor General and the legal expert in cabinet. As such, the minister of justice is responsible for ensuring that the administration of justice under federal jurisdiction is in accordance with the law. As Attorney General, that same minister is responsible for advising the heads of the several departments of the government on all matters of law connected with the departments.
Legal advice is always given independently. The legal advice of the Minister of Justice and Attorney General is based solely on the law, doctrine and applicable jurisprudence. The principles of law are the only relevant considerations when providing legal advice. That is part of the unique experience of the minister's mandate and of the department supporting him or her. Although the constitution of the client departments, agencies and sometimes other departments may be required to establish the facts, the context and underlying political objectives of the request for advice and the legal advice itself must be provided without partisan or political influence.
The Minister of Justice is also responsible for laws and policies relating to the justice portfolio. Like other ministers, when the justice minister creates a policy, he or she works closely with certain cabinet colleagues or the Privy Council Office to ensure that these initiatives are aligned with the government's legislative agenda. In accordance with the Department of Justice Act, the Attorney General of Canada is responsible for any litigation involving the Crown or the departments.
In the conduct of civil litigation, the Attorney General does not have exclusive decision-making power over litigation positions. In civil litigation, sifting through the available and viable legal arguments to determine the position to take in a given case often involves a high level of policy. In that sense, civil litigation is markedly different from criminal litigation.
The entire government is elected to determine what is in the public interest. The Attorney General is responsible for defending cabinet's public policy decisions before the civil courts, thereby helping the government to meet the objectives it was elected on. Provided these decisions seek to adopt a valid legal position, it is appropriate for the Attorney General to adopt such a position. If not, this could be perceived as a lack of solidarity with cabinet, an important aspect of the constitutional convention of collective ministerial responsibility to Parliament.
However, as far as his role in prosecutions is concerned, the Attorney General must act independently, not taking any orders from anyone, as an attorney general in England declared in 1925. More precisely, the Attorney General must act independently of partisan considerations. The Supreme Court determined that this was a fundamental constitutional principle of our democratic government.
Identifying those who need to be prosecuted for crimes and determining sentences should be based on evidence alone and on the proper administration of criminal law. However, it is advisable for the Attorney General to be informed of the relevant context. Let me repeat that because it is important: it is advisable for the Attorney General to be informed of the relevant context, including the potential consequences of a given prosecution. This may give rise to a need to discuss matters with colleagues.
In 2006, the Director of Public Prosecutions Act created an independent entity known as the Public Prosecution Service of Canada. The act enshrined the role of the Attorney General in federal prosecutions by giving the director of public prosecutions the power to initiate and conduct prosecutions. The director acts as the deputy attorney general of Canada when initiating and conducting federal prosecutions on behalf of the Attorney General.
In most cases, the Attorney General will not be involved in the decision-making process with respect to prosecution. However, the Director of Public Prosecutions Act requires the director to inform the Attorney General of any prosecution that raises important questions of general interest. The act therefore guarantees that the Attorney General will be informed of any important criminal matters, and nothing prevents the Attorney General from discussing them with his or her cabinet colleagues.
The Attorney General can issue directives to the director of public prosecutions that may be general or pertain to specific prosecutions. When a directive is issued, it is issued through a totally transparent process. It is published in the Canada Gazette and accessible to all Canadians.
As an aside, I would like to thank the public servants who work for the Canada Gazette. It is an important institution that has existed for 178 years. During my many years as a federal public servant, I had the good fortune of heading up the Canada Gazette for a few years. I am particularly proud of all the public servants who work there and who ensure that that institution remains vibrant and crucial to our democratic system.