Somebody had to blow the whistle on the federal Department of Justice, Edgar Schmidt believed. And he decided the best candidate was him.
“As a fairly senior person toward the end of his career, it fell to me,” said Mr. Schmidt, who launched a legal action last month accusing his department of short-circuiting a legal requirement that new laws be vetted to see whether they comply with guarantees in the Charter of Rights and Freedoms.
Since launching his crusade to force the department to live up to its obligations, Mr. Schmidt has been suspended without pay and barred from his office.
However, in a major victory for the 60-year-old lawyer, the department on Friday backed off its legal strategy of asking a judge to throw out the case.
“In order to promote an expeditious resolution, the defendant wishes to proceed directly to the merits and no longer seeks to strike or stay this action,” federal lawyer Alain Prefontaine said in a document filed late Friday.
Holed up at his snow-covered cottage about 30 kilometres north of Ottawa, Mr. Schmidt said he is no renegade.
“I have no personal interest in this,” he said. “In a sense, I am asking the courts to sustain the rule of law. Most of us have certain times in our lives where we just say: ‘This is something I have to do if I want to live with myself.’”
Mr. Schmidt asked in his court application for a finding that his department has spent the past 20 years violating its duty to ensure that proposed laws comply with the Charter.
The dispute concerns a legal requirement that Parliament be informed when a proposed law is likely to be found inconsistent with rights guaranteed in the Charter. Mr. Schmidt says federal lawyers were consistently instructed not to red-flag a law if there were any possibility of mustering a “credible” argument that it did not breach the Charter.
A provision would have to be flagrantly unconstitutional not to clear a bar set that low, Mr. Schmidt said in the interview: “It’s hard to imagine anyone coming forward with a bill for which there would not be some argument.”
After broaching his concerns with colleagues and managers, Mr. Schmidt – who was hired by the Justice Department in 1998 and rose to a relatively senior position – said he was isolated and warned that rocking the boat would make him ineligible for promotion.
Interest in his case is intense within the legal community.
“He has confirmed what many of us on the outside have been hypothesizing about,” said Jennifer Bond, a constitutional expert at the University of Ottawa. “It is so shocking that that is what the test has become. The review mechanism is obviously not working. If it were, we should have at least some reports over the last 30 years.”
Noting Mr. Schmidt’s statement that laws with as little as a 5-per-cent chance of being upheld in the courts have passed vetting, Prof. Bond said it amounts to an abuse of the democratic process.
She also observed that when an unconstitutional law is struck down, governments can say the judiciary is flouting the will of elected parliamentarians.
The cost of not vetting laws properly is potentially enormous. Charter challenges by individuals or interest groups can cost hundreds of thousands of dollars should they go all the way to the Supreme Court of Canada. And while the cases drag on, the number of people affected by potentially unconstitutional laws climbs.
“You could be looking at 10 or more years before there is resolution,” Prof. Bond said. “During the interim, rights are being violated – often on a daily basis.”
In a paper to be published soon, Prof. Bond analyzed Canada’s law targeting human smuggling and concluded that some of its provisions contained clear Charter violations that were almost sure to lead to it being struck down.
She said a provision that would allow authorities to detain suspected illegal immigrants for a year without the right to a review flies in the face of recent Supreme Court of Canada decisions on the point.
Just last month, a B.C. Supreme Court judge ruled that a section of the Immigration and Refugee Protection Act that defined a human smuggler as anyone who might “knowingly organize, induce, aid or abet” someone coming to
Canada without documentation infringes on Charter rights because it is “unnecessarily broad.”
Mr. Schmidt expressed concern about the costs of his court challenge now that his salary has been suspended. He has asked the courts for interim legal funding on the basis that his challenge is in the public interest.
“All the resources of the state are devoted to the other side,” Mr. Schmidt remarked. “There is a certain irony to that. If the court finds that what the minister and deputy minister have been doing wasn’t consistent with law – then you’ll have a situation where all the resources of the state were devoted to defending wrongdoing, and none toward rectifying it.”
Prof. Bond said that Mr. Schmidt should be lionized, not penalized, for risking his career and finances to expose a serious impropriety.
“Government lawyers are in a unique position of having both an internal client – the ministry or the executive branch – while at the same time they are serving the public good,” she said. “To stigmatize and ostracize someone and deny them pay is pretty heavy-handed. It sends a problematic message to other individuals who might want to come forward.”