Monday, February 20, 2017

The Admission of African-Canadians to the Bar: A Historical Example of the Constitutional Role of the A.G. in the Administration of Justice:

   Among the best examples of the unique position which the office of the Attorney General holds in the administration of Ontario is the historical exclusion of African-Canadian and women from Ontario's legal profession and how the Attorney General intervened to rectify these two wrongs.  Yes - at one point in our lamentable history African-Canadians and women were not permitted to practice law in Ontario. The Law Society of Upper Canada would not allow them in keeping with the norms of that period in time.

   In both instances it was the intervention of the Attorney General which was responsible for their ultimate right to practice law in Ontario.  This intervention arose from the duty and responsibility of the Attorney General to defend the Rule of Law and safeguard civil rights for all in Ontario.

   Below are some excerpts from the Attorney General's factum(Intervener) in Canadian Judicial Council Inquiry of Justice Paul Cosgrove touching on the constitutional role of the Attorney General in the administration of justice.

The Ministry of the 
Attorney General Act: 

23.   ...In Ontario, the principle statutory recognition of the responsibilities of the Attorney General is set out in the Ministry of the Attorney General Act, R.S.O. 1990 c. M.17, s.5, which codifies the historical common law position of the Attorney General.

s. 5.

The Attorney General
(a)   is the Law Officer of the Executive Council
(b)   shall see that the administration of public affairs is in accordance with law;
(c)   shall superintend all matters connected with the administration of justice in Ontario;
(d)   shall perform the duties and have the powers that belong to the Attorney General and Solicitor General for England by law or usage, so far as those duties and powers are applicable to Ontario, and also shall perform the duties and have the powers that, until the Constitution Act, 1867, belonged to the offices of the Attorney General and Solicitor General in the provinces of Canada and Upper Canada and which, under the provisions of that Act, are within the scope of the powers of the Legislature;
(e)   shall advise the Government upon all matters of law connected with legislative enactments and upon all matters of law referred to him or her by the Government;
(f)   shall advise the Government upon all matters of a legislative nature and superintend all Government measures of a legislative nature;
(g)   shall advise the heads of the ministries and agencies of Government upon all matters of law connected with such ministries and agencies;
(h)   shall conduct and regulate all litigation for and against the Crown or any ministry or agency of Government in respect of any subject within the authority or jurisdiction of the Legislature;
(i)   shall superintend all maters connected with judicial offices;
(j)   shall perform such other functions as are assigned to him or her by the Legislature or by the Lieutenant Governor in Council.

26.   The Attorney General occupies a unique position in Canadian law.  While both an elected member of the Legislature and a member of the Executive, he or she is also the Chief Law Officer of the Crown, with an independent responsibility to sustain and defend the Constitution and the rule of law.  This unique position imposes a duty on the Attorney General to consider, objectively and independently of partisan considerations, what actions must be taken to uphold the rule of law.

        It is understood in our province that the attorney general is first and foremost the chief law officer of the Crown, and that the powers and duties of that office take precedence over any others that may derive from his additional roles as minister of justice and member of Cabinet.

(The Hon. Ian G. Scott, "Law, Policy and the Role of the Attorney General: Constancy and Change in the 1980s" (1989) 39 U.T.L.J. 109 at 122)

         Attorneys General are above all servants of the law, responsible for protecting and enhancing the fair and impartial administration of justice, for safeguarding civil rights, and maintaining the rule of law.

(The Hon. R. Roy McMurtry, "The Office of Attorney General", in D. Mendes da Costa, ed., The Cambridge Lectures (Toronto: Butterworths, 1981) at 7

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