Legal experts say it's time for MPs and ministers to start having a much more public debate about whether new bills violate the Charter, in light of revelations from a senior Justice Canada lawyer.
The opaque world of the Department of Justice was laid bare in open court this week as senior lawyer Edgar Schmidt, 60, said he and his colleagues have been receiving "illegal" instructions from superiors for years.
The case in Federal Court – in which Mr. Schmidt asserts that Parliament is not being told when new legislation likely violates the Charter – had academics buzzing Wednesday over its legal and ethical implications.
Charter experts say the ministry's obligations must be changed so that legal opinions on new bills are disclosed publicly in Parliament for MPs to debate, rather than confined to the Justice Department.
Concordia University political science professor James Kelly said the current rules are clearly "broken" and unworkable.
"This provision should be revised," he said, noting that New Zealand makes similar legal opinions public when it introduces new bills.
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."
The department has not confirmed this rule, nor has it filed a statement of defence in court. The department has suspended Mr. Schmidt without pay, arguing he has violated his duty as a lawyer and public servant to uphold confidentiality.
The department's legal representative, Alain Préfontaine, contended in court Tuesday that just because one level of drafters may receive certain instructions, higher levels, such as the minister, might weigh draft bills on different criteria.
Mr. Préfontaine noted that Justice Minister Rob Nicholson is a lawyer who can form his own opinion.
"The minister can say 'I'm not satisfied that your review is stringent enough,' " he said.
A Justice Department investigation's report into Mr. Schmidt's actions states that, over the past 10 years, the public servant has been trying to convince his superiors that the current instructions were illegal, with no success.
Stéphane Beaulac, a law professor with the University of Montreal who has been hired at times by Justice Canada to teach legal drafting for new public servants, says the government's low bar raises several practical concerns.
Because fighting a constitutional challenge is such an expensive and time-consuming process, he said, that a low standard means many Canadians could have their rights infringed by new laws, but won't have the financial means to respond.
Mr. Beaulac has met Mr. Schmidt and supports his argument that the current instructions should be changed.
"He's a man of obvious principle," said Mr. Beaulac.
University of Waterloo political-science professor Emmett Macfarlane, who recently authored a book on the influence of Supreme Court Charter decisions on public policy, said the case illustrates the need for MPs to push the discussion more forcefully when bills are debated.
"This an unprecedented opening of the veils here," he said, noting that government lawyers have consistently refused to explain the process for vetting whether draft bills comply with the Charter.
NDP MP Linda Duncan described Mr. Schmidt's revelations as "absolutely stunning" and said the opposition will be raising this issue when the House resumes later this month.