The role of the attorney‐general and the Canadian charter of rights

Scott, Ian

doi:10.1080/03050718.1987.9985900

Commonwealth Law Bulletin

1987

DOI: 10.1080/03050718.1987.9985900

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The role of the attorney‐general and the Canadian charter of rights

Ian Scott

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2008

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“…The faithful exercise of the Attorney General's responsibility to represent the public interest requires an independent and objective assessment of the circumstances of each case.'' 12 He emphasizes that attorneys general should strive to prevent situations when their litigation strategy is at odds with another minister's policy preferences, by resolving conflicts through the attorney general's legal advisory role within cabinet. However, when referring to those situations when ''cabinet refuses to take his or her advice that a legislative provision is unconstitutional,'' particularly because of public pressure, Scott invokes Edwards' admonition that the attorney general should make an extraordinary demonstration of his or her independent status.…”

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Conceptualizing attorney general conduct in Charter litigation: From independence to central agency

Hennigar

2008

Can Public Adm

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The conduct of attorneys general in litigation involving the Charter of Rights and Freedoms has been the subject of little theoretical contextualization by social scientists. Legal scholars, beginning with John Edwards, have dominated discussion of this issue to date, largely to advocate that attorneys general should act independently of their governments, because to do otherwise would, in their view, violate the Constitution. Without addressing the logic of that argument, this article offers an alternative conception of the role of attorneys general, derived from public administration theory: that attorney general litigation can be a central agency function, for both policy development (when governments ''refer'' draft legislation to the court for an assessment of its constitutionality) and for policy defence against judicial invalidation (after bureaucratic implementation, during regular litigation initiated by individuals and groups affected by the policy). The focus here is on Canada's attorney general, whose role in litigation has received the most scholarly attention to date. A series of cases involving same-sex marriage in 2003 is used to illustrate this alternative conceptualization. Evidence suggests that attorney general Martin Cauchon advanced his government's initial strategy of defending the traditional definition of marriage, contrary to his own belief that it was discriminatory under the Charter. The subsequent reference to the Supreme Court of Canada exemplifies how reference cases can be used by the political centre to manage the agenda in terms of timing and issue-framing.Sommaire : La conduite des procureurs généraux dans les procédures impliquant la Charte des droits et libertés a fait l'objet de peu de contextualisation théorique de la part des spécialistes en sciences sociales. Les juristes, à commencer par John Edwards, ont jusqu'à présent dominé les discussions sur cette question, principalement pour préconiser le fait que les procureurs généraux devraient agir de façon indépendante de leurs gouvernements, sinon, selon eux, cela porterait atteinte à la Constitution. Sans s'attarder sur la logique de cet argument, le présent article offre une conception différente du rô le des procureurs généraux, découlant de la théorie de l'administra-

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Conceptualizing attorney general conduct in Charter litigation: From independence to central agency

Hennigar

2008

Can Public Adm

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The role of the attorney‐general and the Canadian charter of rights

Cited by 1 publication

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Conceptualizing attorney general conduct in Charter litigation: From independence to central agency

Conceptualizing attorney general conduct in Charter litigation: From independence to central agency

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