Kennedy and Honickman: It’s time to sever the roles of justice minister and attorney general

Jody Wilson-Raybould appears at the House of Commons Justice Committee on Parliament Hill in Ottawa on Feb. 27, 2019. Sean Kilpatrick/The Canadian Press.

Over the coming days, The Hub will publish mandate letters for the incoming cabinet ministers that set out a series of bold policy prescriptions that would cumulatively tilt Canadian politics towards a different and better future.

The best antidote to anger and frustration is aspiration and purpose. The campaign has demonstrated how urgently Canada’s body politic needs such a remedy. There’s no time to waste. It’s time to get to work.

Dear Minister of Justice and Attorney General of Canada:

We are honoured that you have agreed to serve Canadians as the Minister of Justice and Attorney General of Canada.

As you know, our government must have a both a short- and long-term orientation. Over the long term, we face many opportunities and challenges. We must confront significant socio-economic, geopolitical, cultural, and environmental issues. The justice system touches on all of these issues but, more importantly, is important to preserve the rule of law in our country. And without the rule of law, we cannot confront these issues.

Canadians have grown skeptical of the ability of government to put aside partisan differences or short-term political advantage and make the hard yet necessary choices to mitigate our long-term challenges and accentuate our opportunities. It is incumbent on us to prove to Canadians that their skepticism and doubt is unwarranted. We must rebuild their trust through our actions and choices. In particular, we must demonstrate that our justice system is accessible and upholds the rights and freedoms of Canadians. It is crucial that our justice system is and is seen to be independent from partisan politics and can redress arbitrary exercises of state and private power.

Our government must live up to the highest ethical standards, including openness, honesty, and accountability. We expect you to reflect these values in your work. It is critical that we honour Canadians’ trust in us and the history and dignity of the institutions and roles that we occupy.

Our immediate policy priorities flow from the best ideas and are rooted in evidence. They also share a common theme: each is designed to uphold and preserve the rule of law and thus fortify Canadians’ rights and freedoms. As the Minister of Justice and Attorney General of Canada, we would ask that you work with your colleagues to deliver on the following key priorities:

  • Establish an efficient process to sever the roles of the Minister of Justice and Attorney General of Canada. This recognizes that the latter role requires both a commitment to upholding the rule of law and a detachment from political partisanship, which are often in tension with the practical realities of being a cabinet minister.
  • In light of the foregoing, and with the future Attorney General (assuming you will continue to be Minister of Justice), establish protocols to ensure greater transparency within your Ministry. Following the old maxim that justice must not only be done, but must be seen to be done, these protocols would ensure that the rule of law is not only complied with in government, but is seen to be complied with.
  • Conduct a thorough review of the Criminal Code to identify provisions that can be repealed, either because they are superfluous (meaning they criminalize the same conduct already criminalized elsewhere in the Criminal Code) or are otherwise not aligned with modern Canadian values.
  • As part of this review, note all provisions that prescribe mandatory minimum terms of imprisonment, and critically assess whether they should be repealed and/or reduced. While parity in sentencing is crucial to ensure our justice system is perceived as fair and one’s fate is not dependent on the identity of a sentencing judge, lengthy terms of imprisonment are of dubious deterrent value (especially when compared to likelihood of enforcement) and cause significant financial, social, and personal cost.
  • As part of a clarification of the jurisdiction of the Federal Court to uphold the rule of law and ensure greater predictability, amend the Federal Courts Act to prescribe a default “standard of review” of correctness for administrative actors’ determinations on questions of law, which would only yield in the face of specific legislation to the contrary.
  • Investigate the efficiency, or lack thereof, of the processes of various administrative tribunals, to learn best practices and develop legislative and/or regulatory changes to facilitate efficiency while ensuring procedural fairness.
  • Work with provinces to ensure access to justice more generally, including through the appointment of additional judges to provincial superior courts and/or courts of appeal, in particular when doing so is necessary to help provinces amend the jurisdiction of courts to facilitate access to justice.
  • Introduce legislation to ensure promptness in judicial discipline decisions, with such decisions being judicially reviewable in the Federal Court of Appeal.

We know we can count on you to fulfill these responsibilities and help to deliver a different and better future rooted in prosperity and opportunity for all Canadians.

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