Social scientists have subjected the conduct of attorneys to theoretical conceptualization in cases of litigation on the Charter of Rights and Freedoms. A spirited discussion by legal scholars has been advanced to assess the conduct of attorneys in the said litigation.
The dominant issue in the said debates has been to establish the role of attorneys in cases falling under the Charter of Rights and Freedoms. Largely, legal scholars have contended that the attorney general should exercise impartiality in the mentioned cases since acting otherwise would be a violation of the Constitution.
John Edwards, in his famous argument, asserts that attorneys are faced with confusion when litigation involves a conflict between a policy and a constitutional duty. Edwards asserted that the Charter of Rights and Freedoms dictates a defined cause of action.
On the other hand, the pursuance of the mentioned course of action may conflict with political interests. The role of partisan politics in litigation may change the conduct of the attorney in Charter Rights litigation.
Edwards states that the attorney should act in an independent way which is free from the influence of the government. His argument has been endorsed by Ian Scott, a former Ontario attorney. The duties of the attorney general are in continuous conflict with the political wishes of the government.
The attorney general being the official government legal representative has a duty to protect the government’s policies, but the attorney general can not be compelled to do so.
In defending the Charter Rights, the attorney general should desist from any form of partisan litigation and his/her impartiality should be fostered. In the highly politicized cases, the test of the attorney general’s independence has been tested.
Edwards argued that in an event that the attorney general represented the government in the Charter of Rights litigation, he had a constitutional duty to protect the interests of the public.
The academic arguments on the independence of the attorney general in the Charter of Rights litigation have been numerous, but there are rare instances when such impartiality has been exercised.
Scott agrees with John’s argument while maintaining that the exercise of independence by the attorney general should be determined by the circumstances surrounding each case. At some point, Scott differs partly with John’s argument.
According to him, the attorney general should endeavor to make sure that litigation does not compete with policies. This can be achieved through the competent exercise of the attorney general’s role in the cabinet.
In an event that the attorney general advice is rejected, and a policy which is unconstitutional is formulated, the attorney has a duty to act independently.
On the other hand, Paul Thomas takes the administrative role theory stating that the attorney general has an exclusive duty to support the political wishes of the government. The conflict can be avoided by the attorney general through offering his/her advice to the cabinet before a policy is formulated.
In evaluating the author’s arguments, it is essential to note how they failed or succeed. Edward’s argument on independence of the attorney general failed during the same sex related cases whereby the attorney general took the same position with the government.
The argument by Thomas Paul is conclusive since the same sex related cases proved that the attorney general’s conduct is determined by the government’s policy. John’s argument does not achieve his goal of promoting the attorney general’s independence.
On the other hand, Paul’s argument is founded on practicability, and his goal to show that the attorney general participates in policy making is achieved.
The understanding that the attorney general is the legal representative of the government leads to the conclusion that promotion of government policies in litigation is inevitable. The Independence of the attorney general as put across by John Edward is not conclusive.
Thomas Paul’s argument is valid since it portrays the practical conduct of the attorney general in promoting the government’s policies. John’s argument has failed in the same sex marriage cases while Thomas argument has been supported. It is clear that Thomas Paul’s argument has succeeded.