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The ‘Unique Role’ of Government Lawyers in Canada

Published online by Cambridge University Press:  29 February 2016

Adam Dodek
Adam Dodek*
Affiliation:
Faculty of Law, University of Ottawa.
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Abstract

Discussions and depictions of lawyers in Canada largely ignore a significant segment of the legal population: government lawyers. Canada is a modern liberal democratic state with a significant public sector employing a large number of lawyers in many public sector settings. Lawyers who work directly for the executive branch – government lawyers – are a special subset of public lawyers. These government lawyers are ‘unique’ in many respects. They do not have paying clients as do private sector lawyers. Their client is ‘the Crown’ – an abstract emanation of the state. This article explains the unique role of government lawyers in Canada as derived from the historic and legislative responsibilities of the Attorney General. It then addresses questions that arise for government lawyers in Canada in public law litigation.

Keywords

governmentpublic lawAttorney Generalpublic litigationCrown lawpublic sector lawyeringCanadian constitutional lawCanadaConstitution
Type
Articles
Information
Israel Law Review , Volume 49 , Issue 1 , March 2016 , pp. 23 - 43
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2016 

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References

1 Government of Canada, Department of Justice, ‘Department of Justice Values and Ethics Code’, http://www.justice.gc.ca/eng/rp-pr/cp-pm/vec-cve/intro.html.

2 Oxford English Dictionary (2nd edn, Clarendon Press 1989), sv ‘unique’.

3 House of Commons Canada, ‘Parliamentary Framework: Role of the Crown and the Governor General’, http://www.parl.gc.ca/About/House/compendium/web-content/c_d_rolecrowngovernorgeneral-e.htm.

4 Constitution Act 1867 (UK), Preamble, ss 91, 92. There are also three ‘territories’ in Northern Canada which do not enjoy the same extent of powers as provinces and also have much smaller populations: Nunavut, the Yukon, and the Northwest Territories. For ease of reference, throughout this article I refer simply to ‘provinces’ or ‘provincial’ lawyers. These references should be taken to include the territories.

5 No comprehensive figures are available. The range of 15 to 25% is taken from statistics of individual provincial law societies: Law Society of Upper Canada, ‘2014 Annual Report’, http://www.annualreport.lsuc.on.ca/2014/en/annual-report-data.html#employment-type-lawyers (reporting that 15% of Ontario lawyers work in government); Law Society of Saskatchewan, ‘Annual Report 2014’, 5, ‘Allocation of Practitioners … (not including Students-at-Law)’, http://www.lawsociety.sk.ca/media/113643/AR2014op.pdf (reporting that 308 out of 1,663 lawyers (18.5%) were working either for the federal or provincial governments); Nova Scotia Barristers’ Society, ‘Statistical Snapshot: Autumn 2014’, http://cdn2.nsbs.org/sites/default/files/cms/menu-pdf/2014statsnapshot.pdf (26.1%); Barreau du Quebec, ‘Barreau-mètre 2015’, 22, Graphique 12: Type de Pratique des Avocats en 2013–2014, http://www.barreau.qc.ca/pdf/publications/barreau-metre-2015.pdf (reporting that 22.7% of Quebec lawyers worked either for the provincial government (17.2%) or the federal government (5.5%). Another 2.9% worked for a municipality and 13.6% for a public or para-public company).

6 Kim Covert, ‘A New Way of Working at Canada's Biggest Law Firm’, The National, 23 April 2015, http://www.nationalmagazine.ca/Blog/April-2015/A-new-way-of-working-at-Canada-s-biggest-law-firm.aspx.

7 Government of Canada, Department of Justice, ‘Organization of the Department of Justice’, http://www.justice.gc.ca/eng/abt-apd/org.html.

8 Federal prosecutors are not part of the Department of Justice; they are part of the Public Prosecution Service of Canada: ‘Public Prosecution Service of Canada’, http://www.ppsc-sppc.gc.ca/eng.

9 These figures are as at 31 March 2014: Government of Canada, Department of Justice, ‘Workforce Representation and Availability as of March 31, 2014’ (on file with author).

10 More lawyers (2,400) work in the federal Department of Justice than the total number of lawyers in the following jurisdictions: New Brunswick (1,757); Newfoundland and Labrador (951); Prince Edward Island (307); Yukon (295); North West Territories (627); Nunavut (219). The number of lawyers in Saskatchewan (2,469) is roughly equal to the number working in the Department of Justice: Federation of Law Societies of Canada, ‘2012 Statistical Report’, http://flsc.ca/wp-content/uploads/2015/03/2012-statistical-report.pdf.

11 Government of Canada, Department of Justice, ‘Canada's Department of Justice’, http://www.justice.gc.ca/eng/abt-apd/recru/ap-dp.html. The Department has a budget of $900 million. It has 17 regional offices and sub-offices and 42 Departmental Legal Services Units (DLSUs) co-located with client departments and agencies: Government of Canada, Department of Justice, ‘Report on Plans and Priorities 2009–10’, http://www.tbs-sct.gc.ca/rpp/2009-2010/inst/jus/jus00-eng.asp.

12 Donald R Songer, The Transformation of the Supreme Court of Canada: An Empirical Examination (University of Toronto Press 2008).

13 Krieger v Law Society of Alberta 2002 SCC 65, paras 26–32. For the purposes of this article, I bracket those lawyers who work on policy development within federal and provincial ministries of justice. These lawyers are not providing ‘legal’ advice or services when they are providing policy advice.

14 Citizens' Legal Challenge Inc v Ontario (Attorney General) (1997) 36 OR (3d) 733, 153 DLR (4th) 299 (CA), paras 11–14; AG Ontario v AG Dominion [1896] AC 348, 363–64, [1896] UKPC 20; Shell Canada Products Ltd v City of Vancouver [1994] 1 SCR 231, 273.

15 n 2.

16 See MacNair, Deborah, ‘In the Service of the Crown: Are Ethical Obligations Different for Government Counsel?’ (2006) 84 Canadian Bar Review 501Google Scholar, 506–07; and MacNair, Deborah, ‘The Role of the Federal Public Sector Lawyer: From Polyester to Silk’ (2001) 50 University of New Brunswick Law Journal 125Google Scholar, 132; Tait, John C, ‘The Public Service Lawyer, Service to the Client and the Rule of Law’ (1997) 23 Commonwealth Law Bulletin 542CrossRefGoogle Scholar, 545.

17 eg, Federation of Law Societies of Canada, ‘Model Code of Professional Conduct’, 10 October 2014, http://flsc.ca/wp-content/uploads/2014/12/conduct1.pdf. This Model Code has been adopted by most provincial law societies.

18 It was exceptional that in 2014–15 the heads of both the regulator of lawyers in Ontario – Canada's most populous province with 14 million residents – and the advocacy association for lawyers in that province were both government lawyers: Law Society of Upper Canada, ‘Janet E. Minor, Law Society Treasurer’, http://www.lsuc.on.ca/treasurer, and Ontario Bar Association, ‘Board of Directors’, http://www.oba.org/About-US/Governance/Board-of-Directors. Janet Minor was the first career government lawyer to head the Law Society of Upper Canada in its more than 200 years of existence: Daniel Fish, ‘Q&A – Janet Minor, Incoming LSUC Treasurer’, Precedent, 4 July 2014, http://lawandstyle.ca/law/janet-minor-lsuc-treasurer.

19 Recent contributions to the academic literature in Canada include the following: Brent Cotter, ‘Lawyers Representing Public Government and a Duty of “Fair Dealing”’, paper presented at the Canadian Bar Association, Alberta Law Conference, March 2008, contained in Alice C Woolley and others, Lawyers' Ethics and Professional Regulation (Lexis Nexis 2008) 472; Keyes, John Mark, ‘The Professional Responsibilities of Legislative Counsel’ (2009) 3 Journal of Parliamentary and Political Law 453Google Scholar; MacNair (2001) (n 16); MacNair, Deborah, ‘Solicitor-Client Privilege and the Crown: When is a Privilege a Privilege?’ (2003) 82 Canadian Bar Review 213Google Scholar; MacNair (2006) (n 16); Tait (n 16); Hutchinson, Allan C, ‘“In the Public Interest”: The Responsibilities and Rights of Government Lawyers’ (2008) 46 Osgoode Hall Law Journal 105CrossRefGoogle Scholar; Wilner, Joshua, ‘Service to the Nation: A Living Legal Value for Justice Lawyers in Canada’ (2009) 32(1) Dalhousie Law Journal 177Google Scholar; Wilson, Malliha, Wong, Taia and Hille, Kevin, ‘Professionalism and the Public Interest’ (2011) 38 Advocates' Quarterly 1Google Scholar; Morris, Michael H and Nishikawa, Sandra, ‘The Orphans of Legal Ethics: Why Government Lawyers are Different – And How We Protect and Promote that Difference in Service of the Rule of Law and the Public Interest’ (2013) 26 Canadian Journal of Administrative Law and Practice 171Google Scholar; and Monahan, Patrick J, ‘“In the Public Interest”: Understanding the Special Role of the Government Lawyer’ (2013) 63 Supreme Court Law Review (2d Series) 43Google Scholar. My own contribution can be found at Dodek, Adam, ‘Lawyering at the Intersection of Public Law and Legal Ethics: Government Lawyers as Custodians of the Rule of Law’ (2010) 33 Dalhousie Law Journal 1Google Scholar.

The paucity of attention to government lawyers in Canada compares poorly with the attention given to the subject in the US: see, eg, Badgerow, Nick J, ‘Walking the Line: Government Lawyer Ethics’ (2003) 12 Kansas Journal of Law and Public Policy 437Google Scholar; Berenson, Steven K, ‘Hard Bargaining on Behalf of the Government Tortfeasor: A Study in Governmental Lawyer Ethics’ (2005) 56 Case Western Reserve Law Review 345Google Scholar; Hammond, Kristina, ‘Plugging the Leaks: Applying the Model Rules to Leaks Made by Government Lawyers’ (2005) 18 Georgetown Journal of Legal Ethics 783Google Scholar; Hemingway, Anna P, ‘Conflicting Obligations’ (2000) 9 Widener Journal of Public Law 227Google Scholar; Lefcourt, Gerald B, ‘Fighting Fire with Fire: Private Attorneys Using the Same Investigative Techniques as Government Attorneys; The Ethical and Legal Considerations for Attorneys Conducting Investigations’ (2007) 36 Hofstra Law Review 397Google Scholar; LeDonne, Gregory B, ‘Revisiting the McDade Amendment: Finding the Appropriate Solution for the Federal Government Lawyer’ (2007) 44 Harvard Journal on Legislation 231Google Scholar; Leong, Nancy, ‘Attorney–Client Privilege in the Public Sector: A Survey of Government Attorneys’ (2007) 20 Georgetown Journal of Legal Ethics 163Google Scholar; Sanders, Maureen A, ‘Government Attorneys and the Ethical Rules: Good Souls in Limbo’ (1993) 7 Brigham Young Journal of Public Law 39Google Scholar; Shpall, Jessica, ‘A Shakeup for the Duty of Confidentiality: The Competing Priorities of a Government Attorney in California’ (2008) 41 Loyola of Los Angeles Law Review 701Google Scholar; W Bradley Wendel, ‘Government Lawyers, Democracy, and the Rule of Law’ (2009) Fordham Law Review 1333; Note, ‘Government Counsel and their Obligations’ (2008) 121 Harvard Law Review 1409Google Scholar; Note ‘Rethinking the Professional Responsibilities of Federal Agency Lawyers’ (2002) 115 Harvard Law Review 1170CrossRefGoogle Scholar.

20 Hutchinson, ibid 106.

21 See John Ll J Edwards, ‘The Office of Attorney General: New Levels of Public Expectations and Accountability’ in Philip C Stenning (ed), Accountability for Criminal Justice: Selected Essays (University of Toronto Press 1995) 294; Edwards, John Ll J, ‘The Attorney-General and the Canadian Charter of Rights’ (1988) 14 Commonwealth Law Bulletin 1444CrossRefGoogle Scholar; John Ll J Edwards, ‘The Attorney General and the Charter of Rights’ in Robert Sharpe (ed), Charter Litigation (Butterworths 1987) 45; John Ll J Edwards, The Attorney General, Politics and the Public Interest (Sweet and Maxwell 1984); John Ll J Edwards, The Law Officers of the Crown (Sweet and Maxwell 1964); Freiman, Mark J, ‘Convergence of Law and Policy and the Role of the Attorney General’ (2002) 16 Supreme Court Law Review (2d Series) 335Google Scholar; Gregory, Gordon F, ‘The Attorney-General in Government’ (1987) 36 University of New Brunswick Law Journal 59Google Scholar; Huscroft, Grant, ‘Reconciling Duty and Discretion: The Attorney General in the Charter Era’ (2009) 34 Queen's Law Journal 769Google Scholar; Huscroft, Grant, ‘The Attorney General and Charter Challenges to Legislation: Advocate or Adjudicator’ (1995) 5 National Journal of Constitutional Law 126Google Scholar; Law Reform Commission of Canada, Controlling Criminal Prosecutions: The Attorney General and the Crown Prosecutor (Law Reform Commission of Canada 1990); McAllister, Debra M, ‘The Attorney General's Role as Guardian of the Public Interest in Charter Litigation’ (2002) 21 Windsor Yearbook of Access to Justice 47Google Scholar; Graeme G Mitchell, ‘The Impact of the Charter on the Public Policy Process: The Attorney General’ in Patrick Monahan and Marie Finkelstein (eds), The Impact of the Charter on the Public Policy Process (York University Centre for Public Law and Public Policy 1993) 77; Roach, Kent, ‘Not Just the Government's Lawyer: The Attorney General as Defender of the Rule of Law’ (2006) 31 Queen's Law Journal 598Google Scholar; Roach, Kent, ‘The Attorney General and the Charter Revisited’ (2000) 50 University of Toronto Law Journal 1CrossRefGoogle Scholar; The Hon Rosenberg, Marc, ‘The Attorney General and the Administration of Criminal Justice’ (2009) 34 Queen's Law Journal 813Google Scholar; Scott, Ian G, ‘The Role of the Attorney General and the Charter of Rights’ (1986–87) 29 Queen's Law Journal 187Google Scholar; Sterling, Lori and MacKay, Heather, ‘The Independence of the Attorney General in the Civil Law Sphere’ (2009) 34 Queen's Law Journal 891Google Scholar; The Hon Scott, Ian, ‘Law, Policy, and the Role of the Attorney General: Constancy and Change in the 1980s’ (1989) 39 University of Toronto Law Journal 109CrossRefGoogle Scholar; The Hon R Roy McMurtry, ‘The Office of the Attorney General’ in Derek Mendes da Costa (ed), The Cambridge Lectures (Butterworths 1981).

22 Carltona Ltd v Commissioner of Works [1943] 2 All ER 560, as embraced by the Supreme Court of Canada in R v Harrison [1976] SCJ No 22, para 14; R v NDT Ventures Ltd [2001] NJ No 363 (CA); Ahmad v Public Service Commission [1974] 2 FC 644 (CA); CAE Metal Abrasive Division of Canadian Bronze Co Ltd v Deputy Minister of National Revenue Customs and Excise [1985] 1 FC 481 (CA). See also the Interpretation Act, RSC 1970, c I-23, ss 1, 24(2). Cf Morris and Nishikawa (n 19) 175; Criminal Code, RSC 1985, c C-46, ss 2, 785, 813, 822(4); Crown Attorneys Act, RSO 1990, c C49, s 10. Certain duties of the Attorney General are considered to be non-delegable; for example, the Attorney General is required to examine every government bill and regulation to determine its compliance with the Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms, and personally report any inconsistency with either document to the House of Commons: Canadian Bill of Rights, SC 1960, c 44, s 3; Department of Justice Act, RSC 1985, c J-2, s 4.1.

23 I acknowledge that the situation of government lawyers is more complex than is presented here. Lawyers working for the Attorney General may adopt various roles: they provide legal advice to others in government; they represent the Crown and the Attorney General in civil litigation and regulatory proceedings; and they provide policy advice to the Attorney General as Minister of Justice responsible for the development of justice policy. In addition, in provinces without a separate Public Prosecution Service, prosecutors are also under the direct supervision of the Attorney General. For the purposes of this article, I recognise that the position of lawyers who provide policy rather than legal advice to the Attorney General is anomalous because, while they are lawyers, they are not acting qua lawyers in providing policy advice. For the purposes of the analysis of the ethical duties of government lawyers, such lawyers should be considered policy analysts who happen to be lawyers rather than lawyers who happen to be providing policy advice: their primary role is in providing policy not legal services.

24 Dodek (n 19) 19–28.

25 ibid.

26 Everingham v Ontario (1991) 84 DLR (4th) 354, [1991] OJ No 3578 (Ont CJ (Gen Div) (Borins J), varied (1992) 8 OR (3d) 121 (Div Ct).

27 eg, May Department Stores v Williamson 549 F 2d 1147, 1150 (per Lay J, concurring); Bulloch v United States 763 F 2d 1115 (10th Circ 1985), cert denied 474 US 1086 (1986) (per McKay J, dissenting) (chastising counsel for failing to make full disclosure during discovery); Douglas v Donovan 704 F 2d 1276 (DC Cir 1983) (failing to disclose the existence of a settlement on the basis that government counsel owe a different or higher duty); Braun v Harris (ED Wis 1980), cited by MacNair (2006) (n 16) 515.

28 Wilson, Wong and Hille (n 19), Morris and Nishikawa (n 19), and Monahan (n 19).

29 Morris and Nishikawa (n 19) 172.

30 ibid 175.

31 By convention in Canada, all members of the Cabinet must have been elected as members of Parliament (MPs) or members of their provincial legislative assembly, or must intend to seek election in the immediate future.

32 For example, Canada's first Prime Minister, Sir John A MacDonald, was Attorney General prior to Confederation and served as Attorney General (1867–73) during his first term as Prime Minister. Prime Minister Sir John Thompson (1885–91, 1891–92, 1892–94) served as Attorney General prior to becoming, and while Prime Minister. Prime Ministers RB Bennett (1921), Louis St Laurent (1941–46, 1948), Pierre Trudeau (1967–68), John Turner (1968–72), Jean Chretien (1980–82) and Kim Campbell (1990–93) also served as Attorney General.

33 Adam Dodek, ‘Lawyers, Guns and Money: Lawyers and Power in Canadian Society’ in David L Blaikie, The Hon Thomas A Cromwell and Darrel Pink (eds), Why Good Lawyers Matter (Irwin Law 2012) 57.

34 The Hon Allan Rock, Minister of Justice and Attorney General of Canada, ‘Observations of Public Service’, (speech delivered to a joint meeting of the Empire Club of Canada and the Canadian Club of Toronto, 24 March 1995), in The Empire Club of Canada Addresses (The Empire Club Foundation 1995) 155–68.

35 Constitution Act 1867 (UK), ss 63, 134 and 135; Department of Justice Act (n 22) s 5(a); Ministry of the Attorney General Act, RSO 1990, c M-17, s 5(d).

36 McMurtry (n 21) 1, 4–5.

37 eg, Sterling and Mackay (n 21) 902.

38 Yoav Dotan, Lawyering for the Rule of Law: Government Lawyers and the Rise of Judicial Power in Israel (Cambridge University Press 2014) 54–56.

39 Dotan, ibid 59, citing HCJ 4267/93 Amitai – Citizens for Judicial Watch v The Government of Israel 1993 PD 47(5) 441, 475.

40 Edwards (1987) (n 21) 53.

41 eg, Sterling and Mackay (n 21) 900.

42 Because Canada is a federal state, powers are divided between the federal government and the provinces. Thus, the Crown is designated as ‘Her Majesty the Queen in Right of Canada’, or ‘Her Majesty the Queen in Right of Alberta’, or ‘Her Majesty the Queen in Right of Nova Scotia’, etc. When we say ‘the Crown must speak with one voice’, we mean that there is a unitary legal position for each level of government. Of course, the legal position for the federal government may differ from that of specific provinces (and often does). This is the nature of federalism in Canada.

43 In 1988, the Attorney General of British Columbia, the Hon Brian RD Smith QC, resigned because the Premier refused to follow his advice regarding legally required funding for abortion procedures in that province; Mr Smith announced his resignation publicly on the floor of the legislature: BC Hansard, 34th Parl, 2nd Sess, 5498, 28 June 1988.

44 cf John Kreiser, ‘Bush: The Decider-in-Chief’, 20 April 2006, http://www.cbsnews.com/news/bush-the-decider-in-chief; and George W Bush, Decision Points (Crown 2010). cf Sterling and Mackay (n 21) 894 (‘in the civil sphere, the Attorney General often acts an advisor and not as a decision-maker’).

45 Morris and Nishikawa (n 19) 176, quoting Tait (n 16) 548 (‘While government lawyers can be influential in giving legal advice to government Ministers and departments, it is the latter who must “decide, within the rule of law, on what the public interest is for government officials”’). One exception is the Attorney General's duty to report inconsistencies with the Canadian Bill of Rights and the Canadian Charter of Rights described in n 22.

46 At the federal level, these are now referred to as ‘Departmental Legal Service Units’ (DLSUs): Government of Canada, ‘Various Roles of Lawyers at the Department of Justice’, http://www.justice.gc.ca/eng/abt-apd/recru/lr-ra.html.

47 Department of Justice Act (n 22) s 4.

48 Ministry of the Attorney General Act (n 35) s 5; An Act Respecting the Office of the Attorney General, SNB 2008, c A-16.5; Department of Justice Act, RSM 1987, c J-35, CCSM c J-35; Justice and Attorney General Act, SS 1983, c J-4.3; Government Organization Act, RSA 2000, c G-10, Sch 9; Attorney General Act, RSBC 1996, c 22; An Act respecting the Ministère de la Justice, RSQ c M-19; Executive Council Act, SNL 1995, c E-16.1, s 4; Department of Justice Notice, 2003, NLR 85/03; Public Service Act, RSNS 1989, c 376, s 29.

49 Prime Minister of Canada, ‘Qualification of a Member of the Federal Court with 10 Years of Experience as a Member of Québec Bar to be Appointed to the Supreme Court of Canada’, 30 September 2013, https://web.archive.org/web/20131018094213/http:/www.pm.gc.ca/eng/news/2013/09/30/qualification-member-federal-court-10-years-experience-member-quebec-bar-be.

50 ibid.

51 Supreme Court of Canada, Reference re Supreme Court Act, ss 5 and 6, 2014 SCC 21, [2014] 1 SCR 433.

52 Ministry of the Attorney General Act (n 35) s 5.

53 Schachter v Canada [1992] 2 SCR 679. See also the comments of the joint dissent in R v Sharpe 2001 SCC 2, [2001] 1 SCR 45, paras 150–51 (stating, at para 151, that ‘it is unfortunate that the Crown conceded that the right to free expression was violated in this appeal in all respects, thereby depriving the Court of the opportunity to fully explore the content and scope of s. 2(b) as it applies in this case’).

54 R v Oakes [1986] 1 SCR 103.

55 Constitution Act, 1982, enacted as Schedule B to the Canada Act 1982 (UK).

56 Marbury v Madison 5 US (Cranch) 137.

57 CA 6821/93 United Bank Mizrahi v Migdal Cooperative Village 1995 49(4) PD 221.

58 Schachter (n 53).

59 Department of Justice Act (n 22) s 4(a).

60 ibid s 4.

61 Sterling and Mackay (n 21) 891–928.

62 Supreme Court Act, RSC 1985, c S-26, s 53.

63 Constitutional Question Act, RSBC 1996, c 68, s 1; Constitutional Questions Act, RSNS 1989, c 89, s 3; Court of Appeal Reference Act, RSQ 1975, c R-23, s 1; Courts of Justice Act, RSO 1990, c 43, s 8(1); Judicature Act, RSA 2000, c J-2, s 26(1); Judicature Act, RSNB 1973, c J-2, s 23(1); Judicature Act, RSNL 1990, c J-4, s 13; Judicature Act, RSPEI 1988, c J-2.1, s 7(1); Constitutional Questions Act, CCSM 2002, c C-180, s 1; Constitutional Questions Act, SS 2012, c C-29.01, s 2(1).

64 Department of Justice Act (n 22) s 4.1 and Canadian Bill of Rights (n 22) s 3.

65 The language in the two statutes is identical.

66 eg, the lists in Hogg, Peter W and Bushell, Allison A, ‘The Charter Dialogue between Courts and Legislatures’ (1997) 35 Osgoode Hall Law Journal 75, 107–24Google Scholar, and Hogg, Peter W, Thornton, Allison A Bushell and Wright, Wade K, ‘Charter Dialogue Revisited or “Much Ado About Metaphors”’ (2007) 45 Osgoode Hall Law Journal 1, 55–65Google Scholar

67 R v Drybones [1970] SCR 282, 298. While the Canadian Bill of Rights (n 22) remains in force, it has largely been superseded in practice by the Canadian Charter of Rights and Freedoms (n 22), which is a constitutional bill of rights; the Canadian Bill of Rights is a more limited statutory bill of rights which applies only to the federal government.

68 The case was heard by the Federal Court. Under the Federal Courts Act, there is a right of appeal against a decision to the Federal Court of Appeal: Federal Courts Act, RSC 1985, c F-7, s 27. There is no automatic right of appeal from the Federal Court of Appeal to the Supreme Court of Canada; the Supreme Court must grant ‘leave’ or permission to hear the appeal: Supreme Court Act, RSC 1985, c S-26, s 40(1).

69 Farrow, Trevor CW, ‘Sustainable Professionalism’ (2008) 46 Osgoode Hall Law Journal 51, 63–71CrossRefGoogle Scholar.

70 Joseph Nightingale (ed), Trial of Queen Caroline, vol 2 (J Robins and Co 1821) 8, quoted in Farrow, ibid 64. See also Woolley and others (n 19) 17, quoting Binnie J in R v Neil [2002] 3 SCR 631. Most legal ethics teachers in Canada use the text from Woolley and others.

71 David Luban, Legal Ethics and Human Dignity (Cambridge University Press 2009) 20.

72 Farrow (n 69) 63–69.

73 Layton, David, ‘The Criminal Defence Lawyer's Role’ (2004) 27 Dalhousie Law Journal 379, 381Google Scholar, quoted in Farrow (n 69) 64.

74 Thanks to Richard Devlin for helping me to make the connection between my analysis of government lawyers and the dominant view of law practice. For examples of critiques or alternative views see, eg, Farrow (n 69); Hutchinson, Allan C, ‘Legal Ethics for a Fragmented Society: Between Professional and Personal’ (1998) 5 International Journal of the Legal Profession 175CrossRefGoogle Scholar; Allan C Hutchinson, Legal Ethics and Professional Responsibility (2nd edn, Irwin Law 2008) Ch 3; Tanovich, David M, ‘Law's Ambition and the Reconstruction of Role Morality in Canada’ (2005) 28 Dalhousie Law Journal 267Google Scholar; Julie Macfarlane, The New Lawyer: How Settlement is Transforming the Practice of Law (UBC Press 2008); and Woolley, Alice C, ‘Integrity in Zealousness: Comparing the Standard Conceptions of the Canadian and American Lawyer’ (1996) 9 Canadian Journal of Law and Jurisprudence 61Google Scholar.

75 Boucher v The Queen [1955] SCR 16, 23–24; Federation of Law Societies of Canada, ‘Model Code of Professional Conduct’ (n 17) r 5.1–3.

76 ‘Model Code of Professional Conduct’, ibid, r 1.1–1.

77 ibid, r 3.2–3.

78 This term actually does not, and never did, appear in Canadian ethical codes of conduct. However, the US influence has widely penetrated the Canadian legal vernacular: Woolley (n 74).

79 ‘Model Code of Professional Conduct’ (n 17) r 5.1–1.

80 ibid, r 5.1–1, comment [2].

81 ibid, comment [1]. This duty of partisan advocacy is tempered by the following: ‘The lawyer must discharge this duty by fair and honourable means, without illegality and in a manner that is consistent with the lawyer's duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties’ right to a fair hearing in which justice can be done. Maintaining dignity, decorum and courtesy in the courtroom is not an empty formality because, unless order is maintained, rights cannot be protected’: ibid.

82 ibid, comment [3].

83 Morris and Nishikawa (n 19) 173.

84 ibid 176.

85 Nightingale (n 70) 8.

86 Cotter (n 19).

87 Scott (1989) (n 21) 120. I am grateful to John Sims for reminding me of these important points.

88 Roach (2006) (n 21).

89 Edwards (1964) (n 21) 286–308; Edwards (1984) (n 21) 138–76. On the public interest see MacNair, M Deborah, ‘In the Name of the Public Good: “Public Interest” as a Legal Standard’ (2006) 10 Canadian Criminal Law Review 175Google Scholar.

90 See, eg, Ontario, Royal Commission Inquiry into Civil Rights: Report No 1 (Queen's Printer 1968) vol 2, 945, and Roach (2006) (n 21).

91 Roach, ibid 600, quoting John Edwards' statement lamenting ‘the all-too-common tendency to view the attorney general and his department as no more than the law firm that is always on call to serve the interests of the political party that is in power at the time’: Edwards (1995) (n 21) 323.

92 Sterling and Mackay (n 21) 900.

93 eg, Ministry of the Attorney General Act (n 35) s 5(b). Similarly, see Department of Justice Act (n 22) s 4(a) (‘see that the administration of public affairs is in accordance with law’).

94 Scott (1989) (n 21) 189.

95 Royal Commission Inquiry into Civil Rights: Report No 1 (n 90) vol 2, 945 quoted in Scott (1986–87) (n 21) 192.

96 eg, Department of Justice Act (n 22) s 4(a); Ministry of the Attorney General Act (n 35) s 5(2).

97 Janet Minor, ‘Public Sector and Ethical Culture’, Cavanagh LLP Professionalism Speaker Series, 11 March 2015, University of Ottawa (Canada) (unpublished).

98 Freiman (n 21) 339.

99 Tait (n 16) 545.

100 Minor (n 97).

101 ibid.

102 Canada, Federal Court Rules, r 304; Judicial Review Procedure Act, RSO 1990, c J-1, s 9(4); Judicial Review Procedure Act, RSBC 1996, c 241, s 16; Judicial Review Act, RSPEI 1988, c J-3, s 9; Saskatchewan, Queen's Bench Rules, r 3-56(1); Nova Scotia Civil Procedure Rules, r 7.07.

103 Administrative Procedures and Jurisdiction Act, RSA 2000, c A-3, s 14.

104 Thanks to David A Wright for suggesting this point to me and prompting me to think about this issue.

105 Royal Commission Inquiry into Civil Rights: Report No 1 (n 90) vol 1, 329.

106 RSO 1990, c J-1.

107 Sterling and Mackay (n 21) 923, citing David J Mullan, Administrative Law (Irwin Law 2001) 437.

108 ibid, citing Toronto Police Association v Toronto Police Services Board [2008] OJ No 4380 (Div Ct).

109 ibid.

110 ibid: ‘This unique expertise is developed through the day-to-day experience of the government lawyer, which, unlike private sector legal work, may involve working with government clients to create a particular administrative tribunal and draft its constituent legislation, as well as access to cabinet materials or government policy documents which discuss the nature of the tribunal, its purpose and intended function. This expertise is also fostered by government lawyers working exclusively on public law issues. Further, in the role of intervenor in a judicial review application, the Attorney General does not generally take a position in support of either one of the parties or with respect to the facts involved in an application. Instead, it is the Attorney General's role to provide a “neutral” third view, generally on a point of law’.

111 Information provided by Ontario Ministry of the Attorney General, Office of the Assistant Deputy Attorney General, Legal Services Division, 27 January 2015 (on file with author).

112 Sterling and Mackay (n 21) 925.

113 ibid.

114 ibid.

115 Royal Commission Inquiry into Civil Rights: Report No 1 (n 90) vol 1, 329.