Bill S-34

1st Session, 38th Parliament,

53-54 Elizabeth II, 2004-2005

senate of canada

BILL S-34

An Act to amend the Department of Justice Act and the Supreme Court Act to remove certain doubts with respect to the constitutional role of the Attorney General of Canada and to clarify the constitutional relationship between the Attorney General of Canada and Parliament

WHEREAS the proper constitutional role of the Attorney General of Canada, as the Law Officer of the Crown, is no longer widely understood, and it has become necessary to clarify the proper constitutional relationship of the Attorney General to the courts, to the Cabinet and to Parliament;

WHEREAS the Department of Justice Act and the Supreme Court Act with respect to the role of the Attorney General of Canada have both lagged behind the current legal and practical realities of the Charter era and Charter litigation, and it has become necessary that these two Acts be modernized in order to meet these contemporary political, legal and social realities;

WHEREAS the constitutional requirement in the Department of Justice Act that the Attorney General of Canada’s stance on policy questions be harmonious with Parliament is no longer widely known or understood, and it has become necessary that the Department of Justice Act should expressly confirm this important constitutional doctrine and the related principles;

WHEREAS the Attorney General of Canada has recently been adopting positions contrary to the decisions of Parliament, which decisions had previously carried in Parliament at the Attorney General’s initiatives, and which decisions had relied upon party discipline and coercion, and it has become necessary to clarify that such actions by an Attorney General are not consistent with the law of the Constitution and with the law of Parliament, both of which demand constitutional comity;

WHEREAS if the Attorney General of Canada wishes to repudiate such decisions of Parliament in which the Attorney General had voted, and if the Attorney General wishes to adopt a stance contrary to those decisions, the Attorney General must first take the sense of both Houses of the Parliament of Canada;

AND WHEREAS section 53 of the Supreme Court Act, enabling the Governor in Council to seek an opinion from the Supreme Court, is no longer viable in this Charter era, because this section could require the Supreme Court of Canada to pre-judge questions prior to its own final rulings on the same questions, which would compromise the Supreme Court and cause it to act as a political arbiter between the Attorney General of Canada and Parliament, a role which is unsuited to a court;

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

DEPARTMENT OF JUSTICE ACT

1. The Department of Justice Act is amended by adding the following after section 5:

SUPREME COURT ACT

2. Section 53 of the Supreme Court Act and the heading “References by Governor in Council” before it are repealed.