Lawyer’s lawsuit highlights Ottawa’s court clashes over Charter rights by Sean Fine, September 20, 2015, The Globe and Mail
Edgar Schmidt was once a lawyer earning $155,000 a year for the federal Justice Department, examining proposed laws for consistency with the Charter of Rights. But he felt uneasy about the way he was told to do his job, believing that officials in his own department – and the Justice Minister himself – were involving him in breaking the law. So he sued his employer.
Monday, in an Ottawa courtroom, his lawsuit against the Justice Minister, deputy justice minister and the department comes to trial, calling attention to an issue that has received little notice thus far in the federal election campaign: the Conservative government’s frequent clashes with the courts over the Charter of Rights.
The Justice Minister is required under a 1985 law to tell Parliament if a proposed law is not “consistent” with the Charter. To Mr. Schmidt, a law is either consistent or it is not. But his superiors in the department didn’t agree.
“Oh, that’s not what we do,” he says he was told. “We ask ourselves whether there’s an argument.” And even if the argument has less than a five-per-cent chance of success in the courts, it can still be “credible” – in other words, consistent.
“That is a kind of doublespeak,” the now-retired Mr. Schmidt says. (The justice department suspended him when he sued and, after six months without pay, he retired.) “Most of us, when we hear the word ‘credible,’ think ‘worthy of being believed.’ But that’s not what the department meant.”
If he wins, “it means government will likely pay a lot more attention to the Charter consistency of their legislation,” he said in an interview.
….the trial raises sharp questions on governing in the Charter era for the Conservative government. No other government has clashed so often with the courts on Charter rights.
… To the federal government, the case is about carving out a space for elected politicians, not judges, to decide which laws to write. “Democracy is about who makes the difficult decisions about what a ‘right answer’ might be,” the Justice Department argues in an affidavit filed with the Federal Court of Canada. “It is for the Minister alone to decide whether he concludes that he has ascertained that a provision in a bill is inconsistent with guaranteed rights.” [The Justice Dept makes the Minister sound like the AER!]
It says that Mr. Schmidt’s approach to examining legislation would harm the principle that the civil service is neutral and supports the government of the day. “Political neutrality calls for an examination standard that supports the Minister in performing his duties, not one which purports to dictate how he should exercise them.”
But to the 62-year-old Mr. Schmidt, the government’s neutrality argument is faulty. “It starts from the wrong premise. It assumes that your loyalty is owed to the government. It’s not. The public service owes its loyalty to the Canadian democratic constitutional state.” He likens Justice Department lawyers to auditors for Enron, a U.S. energy company that engaged in fraud, who deemed their job to serve the executives, rather than the company itself.
The Justice Department lawyer who sued his employer is the son of Mennonite farmers from rural Manitoba. He was no rebel till late in his career. “Mennonites have a fairly strong streak of skepticism about the legal system. It grows out of their understanding of the New Testament. I think there’s an instruction of Paul in one of his letters, ‘Why are you taking your fellow believers to court? Can’t you find a way of resolving things among yourselves?’” But he came to believe that law establishes clear agreements that help in avoiding disputes.
“It was one of the reasons being a legislative drafter appealed to me. It was about helping a government that wanted to act in the public interest, find ways to express policies and implement them.” He believes the seeds of his unlikely rebellion were planted in his childhood. “Our family was not shy on debate. It was never assumed in our family that you couldn’t express an opinion that was contrary to someone else’s.”
Since the Justice Department formalized its “credible argument” interpretation of the law in 1993, there has not been a single instance in which the Justice Minister has advised Parliament that a law is not consistent with the Charter. [Emphasis added]
Some of the comments:
Alceste 41 minutes ago
This excerpt from a January 16, 2013 Globe article explains how such legislation gets passed:
“The minister of justice is required to inform the House of Commons if any new bill or regulation is inconsistent with the 1982 Charter of Rights and Freedoms, yet researchers say no such report has ever been made.
In a statement of claim filed in court, Mr. Schmidt suggests the reason for that is because lawyers in the minister’s department are given instructions that set a very low bar.
“Rather than expressing concern to the minister and Parliament if a draft bill likely violates the Charter, Mr. Schmidt says lawyers in the department are given a much different standard. ” According to his court filing, government lawyers are told to not raise concerns with the minister “… even if the probability of inconsistency is 95 per cent or more, but some argument can reasonably be made in favour of its consistency – even if all arguments in favour of consistency have a combined likelihood of success of five per cent or less.”
I’ve brought up the Edgar Schmidt case on Globe comments over 20 times since 2013 – it’s a stunning revelation of the almost total disregard this government has for the Constitution. It’s very exciting that the trial is finally about to begin.
Richard Roskell 2 hours ago
I wish you the best of luck, Mr. Schmidt.
“Since the Justice Department formalized its “credible argument” interpretation of the law in 1993, there has not been a single instance in which the Justice Minister has advised Parliament that a law is not consistent with the Charter.”
I draw your attention to Bill C-51, recently passed into law by the Harper government. Bill C-51 directly, unambiguously violates the Charter. How? By creating a new category of judges who can secretly authorize Canada’s security services to violate your Charter rights.
Doubly-bad day for Canadians when their government not only violates the Charter, but then violates its own rules about telling you about it.
OldBanister 1 hour ago
Good luck, Mr. Schmidt.
This entire election is about whether the rule of law is going to prevail in Canada. The present government does not believe that it is, or even should be, governed by the Constitution, or by democratic norms of any kind.
Yes, good luck, indeed, Mr. Schmidt.