Reconciling Duty and Discretion: The Attorney General in the Charter Era
40 Pages Posted: 20 Jan 2009 Last revised: 14 Jun 2009
Date Written: January 12, 2009
This paper revisits the role of the Attorney General and two duties in particular: the duty of the Attorney General of Canada to report to the House of Commons on government bills that are inconsistent with the Charter and the duty of provincial and federal Attorneys General to defend legislation that is subject to Charter challenge.
The author reviews the Canadian experience with pre-legislative scrutiny, compares it to the experience under the New Zealand Bill of Rights Act, and considers various arguments that have been made for reform. He argues that the Attorney General has considerable interpretive discretion in advising the House, and should not be understood to be simply a judicial review pre-screen. The reporting duty is working well even though no reports of inconsistency have been made.
The author argues that it is inappropriate for the Attorney General to purport to concede that impugned legislation is unconstitutional. Legislation subject to Charter challenge should be defended regardless of the Attorney General's or the government's view, in order to uphold the democratic values that underlie the constitutional order.
Keywords: Attorney General, Canadian Charter of Rights and Freedoms, pre-legislative scrutiny, interpretive discretion, New Zealand Bill of Rights Act, concessions in litigation, same-sex marriage
JEL Classification: K10, K19, K39
Suggested Citation: Suggested Citation