Edgar Schmidt

Edgar Schmidt

What Happened

In December 2012, Edgar Schmidt sued Harper’s Conservative government for failing to take adequate steps to verify whether proposed bills violate the Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms. After the court case was launched, Schmidt was suspended without pay for “violating his duties as a lawyer and public servant”.  According to Schmidt, the Department of Justice “had its lawyers apply only a flawed and minimal screening test. It does not identify and report on legislation that the department itself considers to be almost certainly illegal and unconstitutional.” The federal court upheld this test, known as the credible argument standard, which it found to be sufficient to fulfill the Department’s review function, as required under the Department of Justice Act. Edgar Schmidt has appealed this decision to the Federal Court of Appeal. Despite the new Liberal government’s stated objective of increasing government transparency, it continues to endorse this standard rather than address the democratic accountability concerns it raises.


Canadian law requires that the Deputy Minister of Justice examine draft legislation for compliance with the Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms (“human rights laws”). If the proposed legislation is likely inconsistent with the Charter, the Justice Minister is obligated to notify Parliament. These obligations are found in s. 3 of the Canadian Bill of Rights; subs. 3(2) and 3(3) of the Statutory Instruments Act, and the Canadian Charter of Rights and Freedoms Examination Regulations, which are enacted pursuant to the Department of Justice Act.

When his law suit was filed in December, 2012, Edgar Schmidt was a senior lawyer at the federal Department of Justice. His case against the government alleged that lawyers were being told not to fulfill these responsibilities unless the draft law was “manifestly” or “certainly” inconsistent with human rights law. Schmidt alleges that lawyers are told that the House of Commons should not be advised of human rights violations if there is any chance of successfully defending draft legislation against a legal challenge. In fact, if the likelihood of a successful challenge is only faint, in the order of 5% or less, the Department of Justice took the approach that this would be sufficient to justify a decision not to advise the House of Commons of problems with human rights compliance. Schmidt alleges that the result is that the House of Commons does not make legislative decisions with the information it has ordered the Minister of Justice to provide.

Schmidt said, as reported in the Globe and Mail, that prior to launching the legal action, he had “raised his concerns with the deputy minister and chief legislative counsel during a July 2012 private meeting. He also raised concerns with the Associate Deputy Minister in the fall of 2012.” They did nothing to remedy the situation.

After instigating legal action against the federal government, Schmidt was suspended without pay and barred from his office. At a hearing on January 15, 2013 before the Federal Court, Mr Justice Noel was reportedly critical of the government’s response, particularly of Schmidt’s suspension. However, the Department of Justice maintained that it follows correct procedures in examining proposed legislation for consistency with human rights law. Initially, Alain Prefontaine, the Department of Justice lawyer, maintained that “the Minister’s reporting practices are an issue between the Minister and Parliament” and thus asked the court to drop the case. Alternatively, he asked the court to stay the action or strike out significant portions of the claim. In February, all of these motions were abandoned by the defendant Attorney General and the case proceeded on its merits.

In motions filed by Schmidt, he asked the court to consider four key documents that set out the practice in the Department of Justice when reviewing proposed legislation.  He also expressed concern over the costs of the legal challenge, particularly with the suspension of his salary. Schmidt indicated, “All the resources of the state are devoted to the other side. 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.”

The defendant, after resisting the disclosure of the documents claiming they were privileged, filed redacted versions of them with the court. As for Schmidt’s second concern, at a court hearing in early March, Justice Noel ordered the federal government to pay for legal counsel for Schmidt, stating that “the case is in the public interest.” Schmidt was granted an advance costs order.    

Dismissal of Schmidt’s Legal Challenge at the Federal Court Level

On March 2, 2016, the Federal Court of Canada released its decision, dismissing Edgar Schmidt's challenge of the low standard used by the Department of Justice in screening new legislation for compatibility with the Charter and Canadian Bill of Rights. Mr. Schmidt, supported by the Canadian Civil Liberties Association, argued that the Department should be required to ensure that legislative bills are more likely than not compatible with the Charter and Canadian Bill of Rights. Mr. Justice Noël rejected this interpretation. Instead, the Court interpreted section 4(1) of the Department of Justice Act as requiring that only a “credible argument” standard be applied, which equates to a low probability, or “faint hope”, of less than 5% confidence that the relevant legislation is consistent with the Charter.

The Federal Court’s 135 page decision contains a detailed statutory interpretation analysis of section 4.1(1) of the Department of Justice Act which analyzes the Minister’s role in “ascertaining” the consistency of proposed legislation with the Charter.  The Court concluded that the role of the Minister was not to ensure consistency, but rather to verify that an argument could be made to credibly advance the legislation in a manner consistent with the Charter. The Court expansively canvased Canada’s democratic system and the multiple safeguards, including cabinet discussion, the Parliamentary process and judicial review by the Courts instigated by public action or concern, to ensure Charter compliance.  

Mr. Justice Noël acknowledged that the prevailing “credible argument” standard provides for a “weak” mechanism for the Minister to report Charter compatibility to Parliament.  However the decision concluded such a standard reflects the proper interpretation of the Department of Justice Act and the role of the Departmental review function, which is not to determine whether legislation is “Charter proof”, and is not meant to constrain the opinion of the Minister.

Appeal Process at the Federal Court of Appeal

On April 1, 2016, Schmidt appealed the Federal Court’s March 2nd decision, asserting that the Court erred in allowing the Department of Justice to rely on the very high “credible argument standard” for reporting concerns to Parliament that proposed legislation may be incompatible with the Charter.  Schmidt’s appeal maintains that the Court’s approach is contrary to Parliament’s intention and Canada’s democratic, constitutional processes and structures, and that it undermines our democratic state’s effective functioning. According to the Federal Court, it was not required for the Minister to ensure or “guarantee consistency” of proposed legislation with the Charter.  However, Schmidt argues that the Federal Court added language that is absent from the relevant statutory provisions that completely changes the nature of the exercise with which the Minister is tasked.

Government Position

Schmidt’s Federal Court case was argued in September 2015 under the Harper government. However, the political climate in which Schmidt has launched his appeal locates itself under the watch of a Liberal government that has pledged increased transparency in terms of publishing Ministerial mandate letters and purports to demystify the practice of governance generally.  In February 2016, the Liberal government promised to review the efficacy of Parliamentary, governmental and civil society tools in an effort to foster access to justice. The review undertaken by the Parliamentary Standing Committee on Justice and Human Rights included a review of the current “credible argument” standard pursuant to section 4.1(1) of the Department of Justice Act.  To date, however, the Committee has produced no report or conclusion on this proposed review.  While, the government has agreed to selectively reveal the constitutional validation of Bill C-16, tabled in June 2016, regarding transgender anti-discrimination, its continued opposition to Schmidt’s appeal appears incongruous with its broader mandate.

Although the government’s decision to oppose Schmidt’s appeal does not affect the status of the Federal Court’s decision which protects the “credible argument standard”, it represents a disconnect from the government’s purported movement towards greater transparency.  Notably, the Federal Court decision does not prevent the government from adopting a consistent policy that embodies a more transparent and rigorous standard rather than the weak credible argument threshold.  Moreover, without systemic changes to policy and practice, critical voices are questioning whether the new regime is complicit in continuing the assaults on civil rights perpetuated under the previous Conservative government.

Civil Society:

The implications of the appeal extend far beyond mere semantics; Schmidt’s appeal has gained national public attention and the issues it raises go to the heart of Canadian democracy. In August and September 2016, several individuals and groups, including the Canadian Civil Liberties Association and the British Columbia Civil Liberties Association, requested permission of the Court to present arguments as Interveners before the Federal Court of Appeal. 

The CCLA has been actively engaged in a Charter First Campaign, which seeks to foster greater Charter compatibility of proposed legislation and to address transparency gaps in the law making process. The CCLA believes that the “credible argument” standard for Department of Justice review of legislation “… is simply too low and, in effect, leaves the difficult work of reconciling policy goals and protected rights to the courts when the executive and legislative branches also have an important role to play. In practice, this loose interpretation has meant that not a single report relaying concerns about Charter compliance has ever been made to Parliament.”

Central to the CCLA’s argument for legal intervention was that the correct interpretation of relevant laws, (i.e. section 3 of the Canadian Bill of Rights, section 4.1 of the Department of Justice Act, and section 3 of the Statutory Instruments Act) will have “… a direct impact on the protection and promotion of constitutionally guaranteed rights and freedoms and on access to justice in Canada.” The intervention of the BCCLA focused upon the burden that the Court’s interpretation places on individual litigants to challenge legislation on the basis of Charter non-compliance.  In particular, the BCCLA noted that “… the burden of vindicating constitutional rights rests on individual litigants, who must have the resources to pursue constitutional litigation…  The difficulty of pursuing Charter litigation represents a significant access to justice problem in Canada.” 

 Both the CCLA and BCCLA were granted Intervenor status but no hearing date has been set for the appeal. Unless the government decides to set a rigorous review standard for ensuring Charter compliance of proposed legislation that will be consistently and transparently shared with Parliament, the outcome of the Federal Court of Appeal’s process may not be the end of this debate.  If the Court of Appeal does not reverse the decision of the Federal Court, an issue of national public importance revealing an important democratic deficit still weighs in the balance and may need to be resolved by the Supreme Court of Canada.

Other Jurisdictions

In the state of Victoria in Australia, each new piece of legislation proposed in parliament requires the preparation of a Statement of Compatibility to evaluate the proposed law’s compliance with human rights.  In other jurisdictions, such as the United States, confidential government documents such as the infamous torture memos relating to prisoner abuse by US military at Guantanamo Bay were made public by the Department of Justice. There is no similar mechanism or precedent in Canada for shining a light on constitutional violations by the state, even for past conduct relating to a previous government.   

 

Relevant Dates:

  • 1998: Edgar Schmidt is hired by the Department of Justice to serve as legal counsel.
  • 1999: Schmidt joins the Legislative Services Branch of the Department.
  • 2002: Schmidt is asked to take responsibility for examination of bills and becomes aware of the department’s interpretation/application of the statutory provisions that require it to examine legislation for compliance with human rights laws.
  • 2002 – 2012: Schmidt raises the issue with colleagues and supervisors in various ways.
  • July 2012: Schmidt raises the issue with the head of the Department of Justice, the Deputy Minister.
  • July 2012: Schmidt asks the Public Service Integrity Commissioner to fund an expert legal opinion on what the statutory provisions require. The Commissioner refuses.
  • December 2012: Schmidt files suit in the Federal Court against the federal government alleging that it is not examining proposed legislation in accordance with the statutorily required standard intended to evaluate a law’s consistency or inconsistency with human rights laws. Schmidt is then suspended without pay.
  • January 2013: Justice Simon Noel of the Federal Court criticizes the federal government for suspending Schmidt.
  • March 2013: Justice Noel orders the government to pay the legal expenses related to Schmidt’s legal challenge, stating that the case is in “the public interest.”
  • May 2013: The Department of Justice and Schmidt settle their employment related issues without disciplinary action against Schmidt but with Schmidt retiring from the public service.
  • March 2, 2016: Federal Court denies Schmidt’s challenge to the “credible argument” standard under the Department of Justice Act.
  • April 1, 2016: Edgar Schmidt launches appeal of the Federal Court decision.
  • August 2016: BCCLA and CCLA are granted status to participate in the appeal.

Role or Position

Edgar Schmidt was a senior lawyer in the federal Department of Justice. He served in the Department since 1998. Between 1999 and 2012, while working in the Legislative Services Branch, Schmidt drafted legislation and provided advice, including on whether proposed legislation was in compliance with the Canadian Charter of Rights and Freedoms.

Implications and Consequences

  • Democracy: If the democratically elected legislative assembly is not being given the information it has requested as to whether proposed legislation is consistent with human rights laws, then the elected members are not able to make their decisions in an informed way.
  • Rule of Law:  The Schmidt case raises important questions: is there is a constitutional obligation on government to actually comply with the Charter, regardless of whether or not there is a statute or regulation saying so?  And is there a proactive obligation on government to ensure that legislation that is being passed has a reasonable prospect of actually being constitutional?  
  • Rule of law:  If the statutory provisions require a more rigorous examination than is being conducted of proposed legislation, then the law is not being followed.  It is shocking that any government would feel free to introduce legislation in Parliament that it believes is almost certainly inconsistent with the Charter, part of Canada’s Constitution. Any such introduction would appear to be a failure to respect the Constitution as Canada’s supreme law (unless it expressly provided that it was intended to override the Charter).
  • Transparency: Suspending Schmidt from his post without pay was punitive and unnecessary. Whistleblowers who raise serious and credible issues about internal governance in the public service should be shielded from retaliation through transparent and fair procedures that protect the public interest in an effective and law-abiding public service that understands its role as the administrative arm of the state, acting within the hierarchy of state norms (constitution, statute law, regulations, administrative direction, in that descending order of priority).
  • Equality: Whistleblowers are not recognized as a protected group under section 15 of the Charter (equality rights section). However, the gross imbalance of power resulting from resources brought to bear against public servants like Schmidt shows how unequal Canadian public servants are before the law in such circumstances.
 
Updated: October 25, 2016
Published: April 30, 2013

Video

Edgar Schmidt - Silencing Dissent in Canada 8/10

Edgar Schmidt speaks out about whistleblowers being silenced and his experience to defend the Charter of rights and freedoms.

Sources