Colby Cosh provides an interesting tidbit of Canadian constitutional detail in the SNC-Lavalin affair:
As a minister she can be expected, and will have expected, to sometimes be given advice and orders from the PM. It would not be an unusual feature of her job to have one of the PM’s close advisers visit her with delegated instructions. Maybe sometimes those instructions would be delivered somewhat abruptly. It happens.
But. The minister of justice also bears an associated title: she is also the attorney general of Canada. You may have gotten the idea that this is just a matter of tradition, a romantic holdover from olden times. It is in fact a matter of explicit statute, the Department of Justice Act, as well as an important constitutional concept. The minister of justice is a politician who writes legislation and oversees the operation of law and courts. The attorney general, although always and necessarily the same human as the minister of justice, is a distinct person charged with the royal authority to commence, manage and cancel criminal prosecutions. When someone sues the Crown it is normally the attorney general who answers, and when the Crown sues it is done through her.
What does this mean? It means that if you are the prime minister’s trusted old chum who does his dirty work, it is all right for you to visit a mere minister of justice, operating in that capacity, and to tell her what the boss wants done for crude partisan reasons. But it is quite strictly forbidden to do that to an attorney general.
In matters of hiring or statute-writing, you can go ahead, kick down her door, and tell her “Orillia needs more red-headed Hungarian judges!” or “There really oughta be a law against candy.” When it comes to prosecutions — when madame has her attorney general hat on — it is very different. You, as a sunny-ways enforcer, are not even supposed to provide unsolicited advice or hints from the prime minister. The PM may be the minister of justice’s boss, but he is not in the chain of command between the attorney general and the sovereign at all.
An attorney general is supposed to make prosecution decisions with the good of the country in mind, and she can ask ministers for their opinions about what would be good, just as she could consult any other schmuck. But for a PM or his dogsbody to venture such an opinion spontaneously, whatever the motive, is not cool. If someone tried to give an attorney general such advice, and she told that person to shove off back to Cape Breton in a leaky dory, and she woke up one morning not long after and turned on the radio and heard that she was no longer attorney general, that would certainly be a mighty big deal.
