The importance of the independence of the role is fundamental to the position and well established in common law+ statutes and
(s chief law officer+ the (ttorney General has a
responsibility to be the guardian of that most elusive concept
' the rule of law. The rule of law is a well established legal principle+ but hard to easily define. It is the rule of law that protects individuals+ and society as a whole+ from arbitrary measures and safeguards personal liberties. The (ttorney General has a special role to play in advising ?abinet to ensure the rule of law is maintained and that ?abinet actions
are legally and constitutionally valid.
In providing such advice it is important to keep in mind the distinction between the (ttorney GeneralCs policy advice and preference and the legal advice being presented to ?abinet. The (ttorney GeneralCs legal advice or constitutional advice should not be lightly disregarded. The (ttorney GeneralCs policy advice has the same weight as that of other ministers.
Criminal prosecutions (s.5(d))
:ne of the most publicly scrutini-ed aspects of the (ttorney GeneralCs role is the responsibility for criminal prosecutions encompassed in section 9 Fd and s. 5# of the ?onstitution (ct+ %=>. <ection 5# gives the provinces authority to legislate in matters related to the administration of criminal justice and thereby gives the provincial (ttorney General authority to prosecute offences under the ?riminal ?ode. The (ttorney General does not+ however+ direct or cause charges to be laid. While the (ttorney General and the (ttorney GeneralCs agents may provide legal advice to the police+ the ultimate decision whether or not to lay charges is for the police. :nce the charge is laid
as to whether the prosecution should proceed+ and in what manner+ is for the (ttorney General and the ?rown (ttorney. It is now an accepted and important constitutional principle that the (ttorney General must carry out the 1inisterCscriminal prosecution responsibilities independent of ?abinet and of any partisan political pressures. The (ttorneyGeneralCs responsibility for individual criminal prosecutions must be undertaken ' and seen to be undertaken ' onstrictly objective and legal criteria+ free of any political considerations. Whether to initiate or stay a criminal proceeding is not an issue of government policy. This responsibility has been characteri-ed as a matter of the
Attorney General acting as the ueen!s Attorney
not as a 1inister of the government of the day.This is not to suggest that decisions regarding criminal prosecutions are made in a complete vacuum. ( wide range of policy considerations may be weighed in e"ecuting this responsibility+ and the (ttorney General may choose to consultthe ?abinet on some of these considerations. 2owever any decisions relating to the conduct of individual prosecutionsmust be the (ttorney GeneralCs alone and independent of the traditional ?abinet decision making process. In practice+in the vast majority of cases+ these decisions are made by the (ttorney GeneralCs agents+ the ?rown (ttorneys. (n important part of the
Crown!s " and thus the Attorney General!s
' responsibility in conducting criminal prosecutions is associated with the responsibility to represent the public interest '
which includes not only the community as a whole