Attorney General

The office of attorney general is essentially that of the chief law officer of the Crown. In that capacity, the attorney general is responsible for the conduct of prosecutions of offences on behalf of the Crown and serves as solicitor to the Crown in respect of any civil matters. The bulk of prosecutions conducted in Canada are done under the auspices of a provincial attorney general. In that capacity, the attorney general has the discretion, based on the evidence presented to him or to his agent, to prosecute or not to prosecute in a given instance.

With respect to certain offences, such as the hate propaganda provisions of the Criminal Code, the direct consent of the attorney general is necessary before his office can commence a prosecution. Some prosecutions are conducted by the office of or through an agent of the attorney general of Canada (in particular, drug, tax and combines prosecutions). Recently, there have been several constitutional cases involving this division of prosecutorial responsibility between federal and provincial authorities.

Regarding the attorney general's function as solicitor to the Crown, any communication between the office of the attorney general and other offices of government is privileged under the solicitor-client privilege at common law.

In all provinces, the office of the attorney general is established under the authority of s92(14) of the Constitution Act of 1867, which gives the provincial legislatures authority over "the administration of justice." However, the attorney general of a province may be formally designated as the attorney general or as the provincial minister of justice (as in Québec, for example) or both. Federally the attorney general is both the attorney general of Canada and the minister of justice of Canada. In some provinces, the attorney general's office may incorporate the functions of the office of the Solicitor General; in other provinces, the 2 offices may be separate and distinct with a division of responsibilities. Federally the 2 offices are separate. In Alberta, in 1993, the functions of the offices of the attorney general and those of the office of the solicitor general were merged and incorporated into a new office of the provincial minister of justice.

Recently, some cases have arisen under the Canadian Charter of Rights and Freedoms which test the independence of provincial court judges and justices of the peace, given their legal attachment to the office of the attorney general and their constitutional requirement of independence under the new entrenched Charter.