Canadian Constitutional Law

Please note that a revised and expanded version of this blog is available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3367097

The SNC Lavalin controversy over whether improper pressure was placed on former Attorney General Jody Wilson-Raybould continues to rage. Both the ambiguities of the facts and the complexity of the policy issues seem to warrant an independent public inquiry. 

Such an inquiry could explore controversies over prosecutorial independence under Justin Trudeau’s government just as the McDonald Commission explored controversies over police independence under Pierre Trudeau’s government. In both cases, the issues had became emmeshed in partisan politics. Clear and independent thinking and reform plans were necessary for moving forward.

The Shawcross Principle

The Shawcross Principle articulated in 1951 is a constitutional convention that while the Attorney General (AG) is entitled to consult Cabinet colleagues about the policy implications of prosecutorial decisions, he or she is not to be directed or pressured on such decisions by the Cabinet and that the decision should be made by the AG alone.

Originally published in the Globe and Mail.

Prof. Lorraine Weinrib was formerly the deputy director of Constitutional Law and Policy, Ministry of the Attorney General of Ontario.

Politicians who are disappointed when constitutional rights frustrate their plans sometimes turn to the notwithstanding clause, thinking that it allows them to do anything they want. In this, they are mistaken.

The Supreme Court of Canada has held that the notwithstanding clause cannot operate retroactively. This ruling brings the override power in line with the rule of law – a pre-eminent constitutional principle. Persons are entitled to assume the continuity of their fundamental rights without worrying about retroactive government nullification.