Department of Justice Canada Minister's Transition Book
Roles and Responsibilities of the Minister of Justice and Attorney General of Canada
Dual Role: Minister of Justice and Attorney General
The Department was officially established upon the adoption of the Department of Justice Act in 1868, with Sir John A. Macdonald presiding as the first Minister of Justice and Attorney General. The Act stipulates that the Minister of Justice is responsible for the management and direction of the Department, and is also ex officio Her Majesty’s Attorney General of Canada.
The Department supports the Minister in both of these roles. See the Department of Justice Act.
The Minister of Justice has lead responsibility for 46 Acts of Parliament and shared responsibility for another 6 Acts and areas of federal law by ensuring a bilingual and bijural national legal framework. The responsibilities include a number of legal policy areas, such as criminal justice (including youth criminal justice), family law, access to justice, Aboriginal justice, public law, and private international law.
The Attorney General protects the interests of the Crown by litigating on behalf of the Crown and by providing legal advice to the Government, departments and agencies of government.
Most prosecution functions of the Attorney General have been assigned to an independent organization, the Public Prosecution Service of Canada, established in 2006. The Attorney General is supported in this role by the Director of Public Prosecutions.
See the Director of Public Prosecutions Act.
Minister of Justice
Under section 4 of the Department of Justice Act, the Minister is the legal advisor to the Government and shall:
- see that the administration of public affairs is in accordance with the law;
- have the superintendence of all matters connected with the administration of justice in Canada not within the jurisdiction of the governments of the provinces;
- advise on the legislative acts and proceedings of each of the legislatures of the provinces, and generally advise the Crown on all matters of law referred to the Minister by the Crown; and
- exercise his or her political judgement as a member of Cabinet, except when providing legal advice, which must be independent and non-partisan.
The Minister of Justice is responsible for matters connected with the administration of justice that fall within federal jurisdiction and fulfils this responsibility by developing policies, laws, and programs to strengthen the national framework. There is considerable collaboration with the provinces and territories with respect to policy development and provision of services including young offenders’ services, legal aid, Aboriginal courtworkers, family maintenance enforcement, and public legal education and information.
The Minister of Justice is often called upon to take the lead on a large number of private members’ bills and motions.
Criminal Conviction Review
The Criminal Code, sections 696.1–696.6, gives the Minister of Justice the power to review a conviction to determine whether there may have been a miscarriage of justice. This power has been part of Canada’s justice system since the original Criminal Code of 1892.
Extradition And Mutual Legal Assistance
Section 7 of the Extradition Act and the Mutual Legal Assistance in Criminal Matters Act, states that the Minister of Justice is responsible for the administration of these acts and the implementation of any treaties entered into under them.
Under section 4.1 of the Department of Justice Act, the Minister shall, in accordance with such regulations as may be prescribed by the Governor in Council, examine every regulation transmitted to the Clerk of the Privy Council for registration pursuant to the Statutory Instruments Act and every bill introduced in or presented to the House of Commons by a minister of the Crown, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Minister shall report any such inconsistency to the House of Commons at the first convenient opportunity. No such reports to the House have been necessary to date.
The Minister of Justice has various responsibilities with regard to a number of independent organizations, referred to collectively as the Justice Portfolio (see Tab 5 for more details).
Under section 5 of the Department of Justice Act, the Attorney General of Canada is the chief law officer of the Crown and as such:
- is entrusted with the powers and charged with the duties that belong to the office of the Attorney General of England by law or usage, in so far as those powers and duties are applicable to Canada, and also with the powers and duties that, by the laws of the provinces, belonged to the office of attorney general of each province up to the time when the Constitution Act, 1867, came into effect, in so far as those laws under the provisions of the said Act are to be administered and carried into effect by the Government of Canada; (many of which, in relation to prosecutions, are now exercised by the independent Director of Public Prosecutions on behalf of the Attorney General);
- shall advise the heads of departments of the government on all matters of law connected with such departments; and
- shall have the regulation and conduct all litigation for or against the Crown or any department, in respect of any subject within the authority of jurisdiction of Canada.
Legal Services to Government
The Attorney General provides legal services to the government and its departments and agencies. These services include the provision of legal advice, the conduct of litigation and the drafting of legislation and regulations.
While client departments generally provide instructions to the Attorney General in civil litigation matters, the Attorney General represents the Crown and not individual departments or agencies. Therefore, the Attorney General seeks to protect interests for the whole of government when providing legal advice and conducting litigation.
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