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Justice Canada lawyer Edgar Schmidt leaves federal court in Ottawa on Jan. 15, 2013. Mr. Schmidt asserts that Parliament is not being told when new legislation likely violates the Charter. (Dave Chan For The Globe and Mail)
Justice Canada lawyer Edgar Schmidt leaves federal court in Ottawa on Jan. 15, 2013. Mr. Schmidt asserts that Parliament is not being told when new legislation likely violates the Charter. (Dave Chan For The Globe and Mail)

ERROL MENDES

Is Ottawa losing another crucial whistleblower? Add to ...

Kevin Page, the first Parliamentary Budget Officer, will soon lose his job as a key protector of Canadian taxpayers’ monies. He is certain not to be reappointed by Stephen Harper when his term ends in March, even though he has been lauded for his warning about major financial mismanagement and misinformation by the government. Mr. Page stood his ground, even while he was fiercely attacked by Conservatives who claimed he was wrong on many key issues - such as the cost of the F35 fighter jets.

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Now, a second brave public servant’s job is in danger for warning about how the 1982 Charter and the 1960 Canadian Bill of Rights are potentially being undermined by the Department of Justice.

The rule of law in Canada depends, in part, on the Minister of Justice giving accurate information to Parliament if proposed legislation and executive regulations are in violation of the two most important rights protecting documents in Canada, the Charter of Rights and, to a lesser extent, the Canadian Bill of Rights. Since 1993, however, guidelines enacted under the Justice Department Act give the Minister of Justice a way of not disclosing when a proposed piece of legislation is in possible violation of enumerated rights.

Justice Department lawyer Edgar Schmidt has taken his own ministry to court over the use of internal guidelines that key lawyers such as Mr. Schmidt must use to advise the minister if new regulations or draft legislation are in potential violation of the Charter or Bill of Rights.

Since 1993, under both successive Liberal and Conservative governments, the guidelines state that if the internal assessment deems the laws and regulations are consistent with the Charter and Bill of Rights then there is no duty on the part of the minister to report to Parliament. That then places critical importance on how the guidelines as set down determine consistency.

Mr. Schmidt, whose chief job was to review such legislation, filed a statement of claim on Dec. 14, 2012, which revealed for the first time to many in the legal community the way in which governments since 1993 have evaded giving a proper report to Parliament on compliance of laws and regulations with the Charter and Bill of Rights.

Mr. Schmidt argues that the Department of Justice Act, under which the guidelines were developed, requires a straightforward assessment by reviewing lawyers whether laws to be presented to Parliament are, on balance, consistent with these fundamental constitutional parameters. Instead, the internal guidelines require the reviewing lawyers to determine if there is as little as a 5 per cent chance of any proposed laws passing constitutional muster, there is no need to report any inconsistency.

In other words, what is really being hidden from Parliament is that such reviews could be hiding laws that are substantially unconstitutional because the reviews have been able to concoct some extremely thin arguments that could be made to support Charter and Bill of Rights compliance, even though such arguments have a very remote likelihood of success in the courts. Such a review would probably get a failing grade in a first year constitutional law class.

The government of Stephen Harper claims there are no Justice Department assessments that suggest that some of its most controversial legislation is in conflict with the Charter and the Canadian Bill of Rights. However, many lawyers, legal academics, the Canadian Bar Association and many NGOs dealing with the draconian crime bills and refugee and human smuggling laws assert that they are substantially in violation of the Charter. Trial courts are starting to agree, striking down provisions of the crime bills. They will no doubt do the same with many aspects of the more-recent refugee legislation championed by Immigration Minister Jason Kenney.

For a courageous attempt to uphold the rule of law, Mr. Schmidt was suspended without pay the day after he filed his statement of claim. He had tried to raise his concerns with superiors and had gotten nowhere. He is reported to have stated that others in the department have agreed with his stand.

Justice Department lawyer, Alain Préfontaine, acting on behalf of the government, argued before Justice Simon Noël of the Federal Court on Jan. 15 that the claim should be dismissed because the Court should not meddle in employment affairs of the department and that the practice by the Minister in reporting on the constitutionality of legislation concerns only Parliament and the Minister and is subject to solicitor-client privilege. Mr. Schmidt is reported to have responded that solicitor-client privilege should not shelter illegal instructions.

Apart from the substantial rule of law issues raised by Mr. Schmidt, the response of the government in suspending him without pay raises the broader issue the value the Harper government places in the need for a vibrant democracy and the ability of public servants be able to speak truth to power. Even Justice Noël seemed keen to emphasise this. The judge, after hearing that Mr. Schmidt had paid the price so quickly after filing his statement of claim is reported to have said to Mr. Préfontaine:

“It’s unbelievable … Your client has done everything it can to kill this thing. The court doesn’t like that … We see that in different countries and we don’t like it … Canada is still a democracy.”

It is, but increasingly becoming a fragile one.

Errol Mendes is a professor of constitutional, corporate and international law at the University of Ottawa

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