The Attorney General’s Forgotten Role as Legal Advisor to the Legislature: A Comment on Schmidt v Canada (Attorney General)

(2019) 52:1 UBC L Rev 201

26 Pages Posted: 16 Feb 2019

See all articles by Andrew Flavelle Martin

Andrew Flavelle Martin

University of British Columbia (UBC), Faculty of Law

Date Written: February 5, 2019

Abstract

In Schmidt v Canada (Attorney General), the Federal Court of Appeal interpreted a series of provisions requiring the Minister of Justice to inform the House of Commons if government bills or proposed regulations are “inconsistent with” the Canadian Charter of Rights and Freedoms or the Canadian Bill of Rights. The Federal Court of Appeal, like the Federal Court below, held that these provisions are triggered only where there is no credible argument for consistency. In doing so, both Courts relied, in part, on a separation of powers argument. They stated that the Minister of Justice and Attorney General is not a legal advisor to Parliament. However, this statement was a legal error: federal legislation provides that the Attorney General is, as a matter of law, a legal advisor to Parliament.

Keywords: Attorney General, Minister of Justice, Legal Ethics, Canadian Charter of Rights and Freedoms

Suggested Citation

Martin, Andrew, The Attorney General’s Forgotten Role as Legal Advisor to the Legislature: A Comment on Schmidt v Canada (Attorney General) (February 5, 2019). (2019) 52:1 UBC L Rev 201. Available at SSRN: https://ssrn.com/abstract=3329670

Andrew Martin (Contact Author)

University of British Columbia (UBC), Faculty of Law ( email )

1822 East Mall
Vancouver, British Columbia V6T 1Z1
Canada

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