Skip to main content

Though Edgar Schmidt’s lawsuit began under a Conservative government, it did not specifically target that government’s conduct. It applies equally to any government.Dave Chan/The Globe and Mail

He launched a three-year court battle to prove to the Canadian justice department that it was showing a lack of respect for the Charter of Rights and for Parliament. The battle ultimately cost Edgar Schmidt his $155,000-a-year job. And on Wednesday, a Federal Court judge ruled against Mr. Schmidt, saying he was wrong about how the process of lawmaking works.

It had been Mr. Schmidt's job as a senior justice-department lawyer to review proposed laws to determine whether they were "consistent" with the Charter. Under federal law, the Justice Minister is obliged to report to Parliament about laws that may run afoul of constitutionally protected rights. But such reports haven't been happening.

The lawsuit became something of a cause célèbre among legal activists during the Harper years, when the courts repeatedly struck down federal crime and social-policy laws for violating Charter rights.

But Justice Simon Noël, in what amounted to a 146-page lecture on political science, said that Mr. Schmidt had misconceived how the Canadian system works. Justice Ministers are not constrained by the reports of their underlings as they develop legislation, and are the legal adviser to cabinet, not the House of Commons.

"The Minister of Justice is not Atlas, carrying the world of guaranteed rights on her shoulders," he said.

Mr. Schmidt, who is now retired, responded to the ruling in an e-mail to The Globe: "I am clearly disappointed by the court's ruling. I will, in consultation with legal counsel, consider an appeal."

The Canadian Civil Liberties Association, which intervened in the case to argue in support of Mr. Schmidt's challenge, said it was important to remember that the judge did not review how the government applied the standard, but only how it should be defined – "even though we know that laws with very questionable constitutional status were introduced and passed in recent years."

The Commons justice committee decided last week to study how constitutional issues are flagged to Parliament. "Whether or not it's constitutional the way we're currently doing it, doesn't mean we can't propose that it be changed or propose a different manner by which the Justice Minister would advise parliamentarians about Charter issues related to proposed legislation," Liberal MP Anthony Housefather said in an interview.

Justice Minister Jody Wilson-Raybould said in a statement that she is committed to "ensuring that federal legislation respects the Constitution of Canada, including the Charter, and that the rights of Canadians are protected."

Even when a proposed law's chance of passing muster with the courts was estimated at less than 5 per cent, Mr. Schmidt's supervisors in the justice department told him he could still find it had a "credible argument" to succeed, and was therefore consistent with the Charter. He said consistency should mean "more likely than not" – that is, more than a 50-per-cent chance of success.

Justice Noël, after reviewing the legislative process in detail, and after noting that even Harper-era laws rejected by courts sometimes found judges at lower courts or dissenting judges on the Supreme Court who supported their legality, said the "credible argument" standard undoubtedly made for a weak reporting mechanism. But he said legislators intended it that way.

"The legislator aimed to promote consistency with guaranteed rights but did not impose on the Minister of Justice the onerous and most likely impossible responsibility of guaranteeing inconsistency-free legislation."

He said that Parliament intended to give the federal cabinet flexibility under the "credible argument" standard. "As we all know, the legal and judicial worlds evolve. Jurisprudence from previous decades may need to be adapted to new situations of fact and to evolving legal principles."

And he implied that Mr. Schmidt had been naive about how politics works. "Why would a government declare openly, through a report from the Minister of Justice addressed to the House of Commons, that the bill it is introducing violates the Charter or the Bill of Rights?"