5. Ministerial Portfolio

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The portfolio of the Minister of Justice and Attorney General of Canada includes the Department of Justice and the Office of the Director of Public Prosecutions, as well as the following organizations that operate at arm’s length from the Minister and the Department, referred to collectively as the Justice portfolio independent organizations:

• Office of the Commissioner for Federal Judicial Affairs;
• Office of the Registrar of the Supreme Court of Canada;
• Courts Administration Service;
• Administrative Tribunals Support Service of Canada;
• Office of the Information Commissioner of Canada;
• Office of the Privacy Commissioner of Canada;
• Canadian Human Rights Commission; and
• Canadian Human Rights Tribunal.

Each organization has a distinct mandate and organizational structure. The organizations prepare their own Departmental Plans (expenditure plans) and Departmental Results Reports (accounts of actual performance) as part of the Government’s reporting on spending and operations. The Minister of Justice approves these plans and reports, which are tabled before the House of Commons by the President of the Treasury Board on behalf of the Minister of Justice.

In addition to these organizations, the Ministerial portfolio also includes the Office of the Ombudsperson for Victims of Crime, the Law Commission of Canada, and the Special Advisor on Wrongful Convictions^{Footnote 4}.

Portfolio Management

Portfolios are generally organized to bring together bodies that share common purposes. The integrity and coherence of government activities depend strongly upon the Ministers’ ability to coordinate their respective portfolios in an integrated way, while respecting any necessary degrees of independence. Within the Justice portfolio, the agencies have an arm’s-length relationship, to varying degrees, with the Minister of Justice and Attorney General of Canada and with the Department of Justice with respect to their operations.

The most pronounced example of this arm’s-length relationship is with the organizations that support the courts, in light of the constitutionally entrenched principles of judicial independence, which involves both individual and institutional relationships: the individual independence of a judge as reflected in such matters as security of tenure; and the institutional independence of the courts as reflected in their institutional or administrative relationships to the executive and legislative branches of government.

The Director of Public Prosecutions is independent in decision making with respect to prosecutions, subject to the oversight of the Attorney General of Canada within the framework of the Director of Public Prosecutions Act. Both the Attorney General and the Director are bound by the constitutional principle of independence in the prosecution function.

Ministers play no role in the day-to-day management of the portfolio organizations, but act as the primary channel through which they access funding and report their activities to Parliament, in addition to being responsible for bringing forward policy proposals related to them. Tools for managing the portfolio organizations can include meetings between a Minister and a portfolio head and between departmental officials and portfolio management or staff.

In some cases, departments and organizations within a portfolio also share certain common services and collaborate to meet their common reporting requirements, such as making submissions to the Treasury Board and reporting to Parliament (e.g. Justice will coordinate with the Canadian Human Rights Commission and the Administrative Tribunals Support Service of Canada for tabling annual reports). The appropriateness of such collaboration is determined by the degree of independence the organization enjoys from the Minister.

Minister of Justice and Attorney General of Canada’s Role in Portfolio Management

In most cases, a Minister determines the extent and nature of relationships with agencies within the portfolio. However, in the case of the Justice portfolio, certain unique considerations apply:

• The Attorney General of Canada’s relationship with the Director of Public Prosecutions is structured by the Director of Public Prosecutions Act and reflects the constitutional principle of prosecutorial independence.
• Several of the organizations in the portfolio support the courts. While these organizations are part of the executive, the principle of judicial independence is constitutionally entrenched, as set out above.
• Several organizations exercise quasi-judicial functions and are required to maintain their independence and impartiality, which is protected through arm’s-length relationships.
• Department of Justice litigators appear before the courts and may also appear before other organizations within the portfolio. For example, counsel for the Department of Justice are frequently called upon to litigate human rights complaints before the Canadian Human Rights Tribunal, to which the Canadian Human Rights Commission is often also a party. The arm’s-length nature of the relationships strengthens respect for the organizations’ independence and impartiality where this is the case.

Office of the Director of Public Prosecutions

The Public Prosecution Service of Canada was created in 2006 under the Director of Public Prosecutions Act as part of the Federal Accountability Act.

Prosecutors play a key role in the Canadian criminal justice system. This role is quasi-judicial in nature, imposing on prosecutors the duty to be objective, independent, and dispassionate. They must see that all cases deserving of prosecution are brought to trial and prosecuted with competence, diligence, and fairness. Prosecutors must be of integrity, above all suspicion, and must exercise the considerable discretion bestowed on them fairly, in good faith, and independent of partisan concerns or direction. While they must be advocates, their role is not to seek convictions at any cost, but to put before the court all available, relevant, and admissible evidence necessary to enable the court to determine the guilt or innocence of the accused.

The mandate of the Public Prosecution Service of Canada is set out in the Director of Public Prosecutions Act. The Act empowers the Director of Public Prosecutions to:

• initiate and conduct federal prosecutions;
• intervene in proceedings that raise a question of public interest that may affect the conduct of prosecutions or related investigations;
• issue guidelines to federal prosecutors;
• advise law enforcement agencies or investigative bodies on general matters relating to prosecutions and on particular investigations that may lead to prosecutions;
• communicate with the media and the public on all matters that involve the initiation and conduct of prosecutions;
• exercise the authority of the Attorney General of Canada in respect of private prosecutions; and
• exercise any other power or carry out any other duty or function assigned by the Attorney General of Canada that is compatible with the office of the Director of Public Prosecutions.

The Act also empowers the Director to:

• initiate and conduct prosecutions under the Canada Elections Act; and
• act, when requested by the Attorney General of Canada, in matters under the Extradition Act and the Mutual Legal Assistance in Criminal Matters Act.

With the exception of matters under the Canada Elections Act, the Attorney General of Canada can issue a directive to the Director of Public Prosecutions about a prosecution or even assume conduct of a prosecution but must do so in writing and a notice must be published in the Canada Gazette. In turn, the Director of Public Prosecutions must inform the Attorney General of any prosecution or planned intervention that may raise important questions of general interest.

The mission of the Public Prosecution Service of Canada is to serve the public by:

• prosecuting cases with diligence, in a manner that is fair, impartial, and objective;
• seeking to protect the rights of individuals and to uphold the rule of law; and
• working within the criminal justice system to help make Canada a safe and just society.

Office of the Commissioner for Federal Judicial Affairs

The Office of the Commissioner for Federal Judicial Affairs was established in 1978 pursuant to the Judges Act to safeguard judicial independence and to provide support and services to the federal judiciary. The judiciary is the third branch of government, and judicial independence is a constitutional principle. In enacting the Judges Act, Parliament recognized these principles and created a particular legislative regime for matters relating to the federal judiciary. The Act also stipulates, in section 74, that the Commissioner shall act as the deputy of the Minister of Justice in administering Part I of the Act.

The Office has a budget of over $600 million and serves more than 1,200 federally appointed judges and 1,100 retired judges and their survivors. It administers the Judges Act, which oversees a range of areas including finance; compensation and benefits; language training; information management/information technology; international cooperation initiatives; and the operation of the Judicial Appointments Secretariat. It provides support to the Supreme Court of Canada appointments process and to the Judicial Compensation and Benefits Commission.

The Office of the Commissioner for Federal Judicial Affairs administers three distinct components, each funded from a separate source:

• Statutory funding is allocated for federally appointed judges’ salaries, allowances and annuities and their surviving beneficiaries’ benefits;
• Voted appropriations support the administrative activities of the Office of the Commissioner; and
• Separately voted appropriations fund the administrative activities of the Canadian Judicial Council.

The Office is headed by a full-time Commissioner for Federal Judicial Affairs, who is assisted by a full-time Deputy Commissioner, an Executive Director, Judicial Appointments and Senior Legal Counsel who administers 17 advisory committees responsible for judicial appointment nominations, a Finance, Administration and Strategic Planning Director, a Compensation, Benefits and Human Resources Director, as well as a Director for International Programs. The Commissioner also oversees an Executive Director and Senior Counsel for the Canadian Judicial Council.

Office of the Registrar of the Supreme Court of Canada

The Registrar, who reports directly to the Chief Justice of Canada, is responsible for the management of the Court and exercises the quasi-judicial powers conferred by the Supreme Court Act and Rules.

The Registrar’s management responsibilities include the appointment and supervision of Court staff, the management of the Library and the Registry, and the publication of the Canada Supreme Court Reports.

The Registrar and the Deputy Registrar are both appointed by the Governor in Council. The Court consists of approximately 200 employees, all of whom are members of the federal public service and work within one of the following sectors:

• the Court Operations Sector;
• the Communication and Outreach Services;
• the Corporate Services Sector; and
• the Judicial Support and Protocol Services Sector.

Courts Administration Service

The Courts Administration Service was established in 2003 with the coming into force of the Courts Administration Service Act. The role of the Courts Administration Service is to provide effective and efficient registry and judicial and corporate services to four superior courts of record: the Federal Court of Appeal; the Federal Court; the Court Martial Appeal Court of Canada; and the Tax Court of Canada.

The purpose of the Courts Administration Service is to:

• facilitate coordination and cooperation among the Courts for the purpose of ensuring effective and efficient provision of administrative services;
• enhance judicial independence by placing administrative services at arm’s-length from the Government of Canada and by affirming the roles of Chief Justices and judges in the management of the Courts; and
• enhance accountability for the use of public money in support of court administration while safeguarding the independence of the judiciary.

Subsections 7(1), (2), (3) and (4) of the Act set out the powers, duties, and functions of the Chief Administrator of the Courts Administration Service as follows:

• The Chief Administrator is the Courts Administration Service’s chief executive officer and has supervision over and direction of its work and staff;
• The Chief Administrator has all the powers necessary for the overall effective and efficient management and administration of all court services, including court facilities, libraries, corporate services, and staffing;
• The Chief Administrator, in consultation with the Chief Justices of the Courts, shall establish and maintain the registries and prepare budgetary submissions for the requirements of those courts and for the related needs of the Courts Administration Service; and
• The powers of the Chief Administrator do not extend to any matter assigned by law to the judiciary.

Subsection 9(1) of the Act states that a Chief Justice may issue binding directions in writing to the Chief Administrator with respect to any matter within the Chief Administrator’s authority.

Administrative Tribunals Support Service of Canada

The Administrative Tribunals Support Service of Canada, which was established with the coming into force of the Administrative Tribunals Support Service of Canada Act on November 1, 2014, is responsible for providing support services and facilities to 11 federal administrative tribunals by way of a single, integrated organization.

The supported tribunals are:

• Canada Agricultural Review Tribunal;
• Canada Industrial Relations Board;
• Canadian Cultural Property Export Review Board;
• Canadian Human Rights Tribunal;
• Canadian International Trade Tribunal;
• Competition Tribunal;
• Public Servants Disclosure Protection Tribunal;
• Federal Public Sector Labour Relations and Employment Board;
• Social Security Tribunal;
• Specific Claims Tribunal Canada; and
• Transportation Appeal Tribunal of Canada.

The ATSSC also supports the Environmental Protection Tribunal of Canada through a memorandum of understanding with Environment and Climate Change Canada. The support services include the specialized services required by each tribunal (e.g. registry services, research and analysis, legal, and other mandate or case activities specific to each tribunal), as well as internal services (e.g. human resources, financial services, information management and technology, security, planning, and communications).

Office of the Information Commissioner of Canada

The Office of the Information Commissioner of Canada was established under the federal Access to Information Act, which came into force in 1983. The Information Commissioner is an independent Agent of Parliament, appointed by the Governor in Council following approval of the nomination by resolutions of the Senate and the House of Commons.

The Information Commissioner of Canada has the responsibility to investigate complaints under the Act and submit an annual report to Parliament, through the offices of the speakers of the Senate and the House of Commons, on the activities of the Office within three months after the end of the fiscal year.

The Commissioner works independently from any other part of the government to investigate complaints from individuals with respect to the access to records held by federal government institutions.

Canadians, permanent residents and other individuals present in Canada may complain to the Commissioner about any matter specified in section 30 of the Act. The Act provides a right of access to records under the control of a federal institution, subject to some specific exclusions (e.g. Cabinet confidences) and exemptions (e.g. solicitor-client privileged communications).

The Commissioner has the power to summon witnesses, administer oaths and compel the production of evidence if voluntary cooperation is not forthcoming. Since 2019, the Commissioner also has order-making powers that allow her to, among other things, order the production of records if she concludes, in the course of her investigation, that the complaint is well-founded. Any matter that is subject of the complaint or of an order can be judicially reviewed by the Federal Court of Canada.

Office of the Privacy Commissioner of Canada

The Office of the Privacy Commissioner of Canada was established under the Privacy Act, which came into force in 1983. The Privacy Commissioner is an independent Agent of Parliament, appointed by the Governor in Council following approval of the appointment by resolution of the Senate and the House of Commons.

The Personal Information Protection and Electronic Documents Act, which came into force in 2001, made the Privacy Commissioner responsible for implementing Part I of that Act.

The Privacy Commissioner of Canada has the responsibility to investigate complaints, publicly report on the personal information handling practices of public and private sector organizations, conduct research into privacy issues, and promote awareness and understanding of the protection of personal information and privacy issues by the Canadian public.

The Commissioner works independently from any other part of the government to investigate complaints from individuals with respect to the federal public sector and the private sector.

The Commissioner has the power to summon witnesses, administer oaths and compel the production of evidence if voluntary cooperation is not forthcoming.

The Commissioner can also ask the Federal Court to review a case where matters remain unresolved.

The Office submits an annual report to Parliament, through the offices of the speakers of the Senate and the House of Commons, on activities of the Office within three months after the end of the fiscal year.

The Privacy Act

The Privacy Act is the law that governs the personal information handling practices of federal government institutions. The Act applies to all of the personal information federal institutions collect, use and disclose–be it about individuals or federal employees. The Act also gives individuals the right to access and request correction of personal information held by these federal government institutions.

Any individual may complain to the Commissioner about any matter specified in section 29 of the Privacy Act.

The Personal Information Protection and Electronic Documents Act

As the Minister responsible for the Personal Information Protection and Electronic Documents Act, the Minister of Innovation, Science and Economic Development recommends to the Governor in Council the adoption of Orders in Council under the Act and tables government bills in Parliament to amend the Act.

The Act applies to personal information collected, used or disclosed in the course of commercial activities by all private sector organizations in Canada, except in the provinces of Quebec, British Columbia and Alberta, which have enacted provincial private-sector privacy legislation that is deemed to be substantially similar to the federal law. Ontario, New Brunswick, Nova Scotia and Newfoundland and Labrador have also adopted substantially similar legislation regarding the collection, use and disclosure of personal health information.

Any individual may complain to the Commissioner about any matter specified in section 11 of the Personal Information Protection and Electronic Documents Act, and the Commissioner may himself initiate a complaint.

Canadian Human Rights Commission

The Canadian Human Rights Commission was established in 1977 to administer the Canadian Human Rights Act. The Act promotes equality of opportunity and protects individuals from discrimination based on a number of specifically prohibited grounds: race; national or ethnic origin; colour; religion; age; sex; sexual orientation; gender identity or expression; marital status; family status; genetic characteristics; disability; and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.

The Commission aims to discourage and reduce discriminatory practices by dealing with complaints of discrimination on the prohibited grounds enumerated in the Canadian Human Rights Act, including through alternative dispute resolution, especially mediation; raising public awareness of current and emerging human rights issues through policy development, education and engagement initiatives and research; and working closely with other levels of government, employers, service providers and community organizations to promote human rights principles.

The Canadian Human Rights Act provides for the Commission to be composed of a Chief Commissioner, a Deputy Chief Commissioner, two members referred to as the “Accessibility Commissioner” and the “Pay Equity Commissioner”, and no fewer than three or more than six members to be appointed by the Governor in Council. The Chief Commissioner and the Deputy Chief Commissioner are full-time members appointed for a term not exceeding seven years; part-time members are appointed for a term not exceeding three years.

The Commission also administers the Employment Equity Act, the Accessible Canada Act, and the Pay Equity Act. The Office of the Federal Housing Advocate is also housed at the Commission and supports the Advocate in carrying out their mandate.

Canadian Human Rights Tribunal

The Canadian Human Rights Tribunal is a quasi-judicial body that inquires into complaints of discrimination referred to it by the Canadian Human Rights Commission and decides whether the conduct alleged in the complaint is a discriminatory practice within the meaning of the Canadian Human Rights Act.

The Tribunal can also review directions and assessments made under the Employment Equity Act. Moreover, under the Pay Equity Act, the Pay Equity Commissioner may refer an important question of law or a question of jurisdiction, which would, in the Pay Equity Commissioner’s opinion, be more appropriate for the Tribunal to determine. Finally, the Tribunal also has jurisdiction to hear appeals of the Accessibility Commissioner’s decisions, as provided for by the Accessible Canada Act.

The discriminatory practices outlined in the Canadian Human Rights Act are designed to protect individuals from discrimination, particularly in employment and in the provision of goods, services, facilities and commercial or residential premises. The Act applies to federally regulated employers and service providers, including federal government departments and agencies, federal Crown corporations, chartered banks, airlines, shipping and interprovincial trucking companies, telecommunications and broadcasting organizations, and First Nations governments and federally regulated Indigenous organizations.

Like a court, the Tribunal must be–and must be seen to be–impartial. It renders decisions that are subject to review by the Federal Court at the request of any of the parties. However, unlike a court, the Tribunal provides an informal setting where parties can present their case without adhering to complex rules of evidence and procedure. If the parties are willing, the Tribunal also offers mediation services to allow parties the opportunity to settle their dispute with the assistance of a Tribunal Member.

Office of the Federal Ombudsperson for Victims of Crime

The Office of the Federal Ombudsperson for Victims of Crime was established by Order in Council in 2007 and the Ombudsperson is appointed by the Governor in Council.

The mandate of the Federal Ombudsperson for Victims of Crime, which focuses on matters of federal jurisdiction, including victims’ concerns regarding federal corrections, is to:

• promote victims’ access to existing federal programs and services for victims;
• address victims’ complaints about compliance with the provisions of the Corrections and Conditional Release Act that apply to victims of crimes committed by offenders under federal jurisdiction;
• promote awareness of the needs and concerns of victims and the applicable laws that benefit victims of crime, including to promote the principles set out in the Canadian Statement of Basic Principles of Justice for Victims of Crime, 2003, with respect to matters of federal jurisdiction, among criminal justice personnel and policy makers;
• identify and review emerging and systemic issues, including those issues related to programs and services provided or administered by the Department of Justice or the Department of Public Safety, that impact negatively on victims of crime; and
• facilitate victims’ access to existing federal programs and services by providing them with information and referrals.

The Ombudsperson may commence a review of an issue at the request of the Minister of Justice or the Minister of Public Safety; on the Ombudsperson’s own initiative; or at the request of a victim registered under the Corrections and Conditional Release Act in respect of issues relating to the victim’s entitlements under that Act or any victim, victim service organization or victim advocate regarding other matters within federal responsibility.

The Ombudsperson may issue reports, with or without recommendations, at any time concerning any review or other matter that is within the Ombudsperson’s mandate to the Minister of Justice or the Minister of Public Safety, as appropriate. The Ombudsperson is required to submit an annual report on activities to the Minister of Justice, who will table the report before Parliament.

The Office of the Ombudsperson operates at arm’s length from the Department of Justice and has an operating budget for accommodation, customary office expenses, translation, research, travel and consultations.

Law Commission of Canada

The Law Commission of Canada is an independent body that provides non-partisan advice to the federal government on matters relating to the improvement, modernization and reform of Canadian laws. This advice includes the development of new approaches to the law and measures to make the legal system more efficient, economical and accessible.

First established as the Law Reform Commission of Canada in 1971 and re-established as the Law Commission of Canada in 1997, the Commission was revived in 2023.

Shauna Van Praagh was appointed President of the Law Commission of Canada on February 22, 2023, holding office for five years, effective June 6, 2023.

The Commission’s President is required to submit to the Minister of Justice for tabling before Parliament an annual report on the Commission’s activities.

Special Advisor on Wrongful Convictions

Section 696.1 of the Criminal Code currently provides that a person who has been convicted of an offence under a federal law or regulation and who has exhausted all appeals may apply to the Minister of Justice for a review of their conviction. Criminal conviction review is an important safeguard to protect those Canadians who may have experienced potential miscarriages of justice.

The Special Advisor on Wrongful Convictions has a mandate to review applications at the various stages of review and to provide independent expert legal advice directly to the Minister of Justice, including advice and recommendations on the appropriate remedy, if any. The current Special Advisor on Wrongful Convictions is Morris J. Fish.

Former Bill C-40, Miscarriage of Justice Review Commission Act (David and Joyce Milgaard’s Law), received Royal Assent on December 17, 2024. Part XXI.1 of the Criminal Code is amended and a new Part XXI.2 is added establishing an independent Miscarriage of Justice Review Commission to replace the review process set out in Part XXI.1 with a process in which applications for reviews of findings and verdicts on the grounds of miscarriage of justice are made to the Commission instead of to the Minister. These amendments came into force on March 6, 2025, but the Commission is not yet operational.

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