SNC-Lavalin affair: Splitting AG role from the justice file is worth considering, say former AGs, experts

The political debate around the SNC-Lavalin affair has many threads, but almost all of them could prove that philosopher and one-time attorney general of England Francis Bacon was onto something when he said that to hold his legal post in government was "the painfullest task in the realm."

Yet in England and Wales today the post of attorney general and the minister of Justice does not exist as it does in Canada. There the roles are divided between two people, as they are in Australia and New Zealand. But here the political role of minister is sewn into the objective task of being Canada's attorney general.

To make the post less agonizing for the current and future holders of the position in Canada, it has been suggested by many, including Jody Wilson-Raybould, that the time has come to think more closely about following the U.K.'s example.

Wilson-Raybould, the former justice minister and attorney general of Canada, told a Commons committee this week that she felt she was improperly pressured by 11 officials in the Prime Minister's Office and elsewhere to allow Quebec-based engineering company SNC-Lavalin avoid bribery and corruption charges by striking a remediation agreement.

Potential 'lost opportunity'

She did not allow the agreement, but the ensuing political controversy raises a question about dividing her former role into two unique positions.

"I think it would be a lost opportunity not to have a real discussion about whether this dual role is still sustainable," Trevor Farrow, associate dean at Osgoode Hall Law School, told CBC News.  

Farrow says that he thinks the country can easily continue on with one person doing both jobs. But should they, knowing what we know now?

"It's also important to put Canadians at ease — that they not only see that they have a justice system that is fair and equitable, but that it's seen to be fair and equitable for all players, not just the powerful."

One voice that is in favour of the move is former Liberal attorney general and justice minister Irwin Cotler, who held the post from 2003 to 2006 and advocated before he left office that the job be split between two people.

"The prime minister, other ministers, their staff, relate to the minister of Justice and attorney general as being one of them, i.e. a political minister. They speak to her wearing their political hat," Cotler told CBC Radio's The House in an interview airing Saturday.

"They sometimes ignore, or may not even be conscious of the fact, that she's also the attorney general and wears a legal hat."   

Remaining grounded in political reality

Cotler said that splitting the position would help to eliminate "the inherent tension between the dual responsibilities of being a minister of justice and attorney general."

Another former justice minister and attorney general, Anne McLellan, who held the post from 1997 to 2002 under former prime minister Jean Chrétien, agrees with Farrow that studying the possibility is a worthy endeavour.

Yet she says it shouldn't happen until the political tensions around the SNC-Lavalin affair have shrunk well into the rearview mirror. Should, after such a study, the roles be split, it would be critical to ensure future attorneys general remain plugged into the political context of decision-making, she said.

"I don't believe that the attorney general should be isolated from the concerns, the anxieties, the fears, the aspirations of their colleagues. And when I say colleagues, I mean ministerial, caucus colleagues and opposition colleagues," she said.

"The attorney general cannot be divorced in making decisions around invoking sections of the anti-terrorism or other legislation, cannot be divorced by what is happening in various communities in our country, their fears, their aspirations, how they feel if a prosecution is commenced and a certain sentence is sought."

The advantage of wearing two hats

A way to do that, she said, is to make the attorney general post akin to the position the Speaker has, where they are an elected MP that is engaged in politics and is answerable to a constituency.

McLellan said she backs further study on splitting the current role, but that when she served in the post the dual nature of the job made for better policy. She said she was pushed hard to lean toward certain decisions, but that she enjoyed the debates. She argues it made for better legislation, but only because everyone knew where the "red lines" were.

"It sounds complex, but actually day in, day out, it's not that hard, as long as everybody knows what their roles are: PMO, clerk, colleagues, everybody knows what their role is."

A senior source who has sat around the cabinet table discussing policy at the highest levels told CBC that a two-hatted minister of justice and attorney general can be complicated, but also an asset.

Leading at home and abroad

"I do think you have a problem if you ask an attorney general to give you advice who hasn't been privy to the full discussion in cabinet," the source said.

"I think you have an advantage that is not insignificant in having the two of them together. That doesn't mean it's the right answer, that you should have them together. It just means that there is something lost when you separate them. Is there a potential conflict? Yes. Can the conflict be managed? Absolutely."     

While this discussion is important in the context of the SNC-Lavalin controversy, Farrow said it is also important to address the issue if the Trudeau government remains intent on playing a leadership role internationally.

"It's an important time for Canada to be able to say, 'We not only champion the rule of law internationally, we do the rule of law domestically,'" he said.

Farrow said it will be important for the government to make sure it has Canada's trust, as well, not only with the attorney general's role, but also with "how the rule of law operates in our modern society."