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I keep hearing people recommend that the role of Min of Justice be separated from the role of Attorney General. This is an issue I've been thinking about for more than 20 years, since I ran across it as a PhD student. Some thoughts.
First, it's not clear to me that a PM can do this without legislation. The DoJ Act makes the Min of Justice ex officio the AG for Canada.
I will defer to those who know more about statutory interpretation, the Interp Act and the various Reorg of Gvt Acts since 1970. But the Act itself seems to rule out this possibility.
Secondly, we shld avoid simply waving our hands about how the British do it. The British had the head of their judiciary in cabinet for years. We would never dream of doing that. Also, for years after Confed, the Min of Justice was not only AG but also PM. We still had
the rule of law in Canada. Thirdly, splitting the roles doesn't solve the problem we've seen in the last month. If we had a separate AG, the PM, Ms Telford, Mr Butts, the Clerk and Mr Chin would have pressured that person instead.
PM Trudeau's instructions to ministers, Open and Accountable Govt (on the PMO website), echoing instructions from previous PMs to their ministers, sets out how to handle the AG's role. Everyone knew this and blundered ahead anyway.
Finally, by adding the DPP role in 2006, the Harper govt did the right thing. Followed what the British actually did, since their AG can be subject to political pressure too. Nova Scotia. BC, sort of.
In other words, the Dir of Public Prosecutions and her special status in the public service does what people think they will do but won't by separating the AG from the Min of Justice.
Personally, I have found Prof Edwards' three learned books on this issue helpful, Law Officers of the Crown. The AG and the Public Interest. His study for the Macdonald Commission into certain activities of the RCMP.
These are all available at your local law library for anyone wishing to comment further.
