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Dismissal of Schmidt’s Legal Challenge
On March 2, 2016, Justice Noël of the Federal Court of Canada released his decision dismissing the legal challenge of Edgar Schmidt against the prevailing standard by which the Department of Justice vets new legislation for compatibility with the Charter and Canadian Bill of Rights. While Mr. Schmidt, supported by the Canadian Civil Liberties Association, argued that the standard should be one that requires the Department to ensure that proposed legislation is more likely than not compatible with the Charter and Canadian Bill of Rights, the Court rejected this interpretation. Instead, the Court has 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.
Reasoning of the Federal Court
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 interpretation of the Minister’s role in “ascertaining” 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 the importance of division of powers in Canada’s democratic system, under which it indicated that there are multiple other safeguards, including cabinet discussion, the Parliamentary process and judicial review by the Courts instigated by public action or concern to ensure Charter compliance of legislation. In rendering his decision, 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.
Implications of the Decision
In response to the decision, Department of Justice media relations has indicated that “the Minister of Justice remains committed to ensuring that federal legislation respects the Constitution of Canada, including the Charter, and that the rights of Canadians are protected.” However, Mr. Schmidt believes that the decision has missed the mark and is contemplating an appeal of the ruling. Schmidt asks – “How can it be legitimate for temporary officers of the democratic, constitutional Canadian state to propose or take actions that they themselves believe to be almost certainly contrary to the most fundamental decisions and rules of the state of which they are officers, i.e. contrary to the Constitution?” The decision does not squarely address this question, but rather, rationalizes the role of the Department of Justice in view of its limitations within the scheme of division of powers.
Canadian Civil Liberties Association (CCLA)
The CCLA has expressed disappointment at the recent ruling. It 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.”
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.
The new Liberal government has promised to review the efficacy of Parliamentary, governmental and civil society tools in an effort to foster access to justice. The proposed review being undertaken by Parliamentary Standing Committee on Justice and Human Rights includes a review of the current “credible argument” standard pursuant to section 4.1(1) of the Department of Justice Act.
In December 2012, Edgar Schmidt sued the federal 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. 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.” After the court case was launched, Schmidt was suspended without pay for “violating his duties as a lawyer and public servant”. Later the Department of Justice took the position that this was not a disciplinary measure, but rather simply an “administrative” suspension.
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 the claim was filed in December, 2012, Edgar Schmidt was a senior lawyer at the federal Department of Justice. He launched a legal case against the Attorney General of Canada, alleging 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. He stated, “The day after the filing of this statement [by Mr. Schmidt], bang: ‘You’re suspended.’” Moreover, addressing the federal government’s lawyer, Justice Noel added, “It’s unbelievable … Your client and has done everything it can to kill this thing. The court doesn’t like that...Canada is still a democracy.”
The Department of Justice has maintained that it follows correct procedures in examining proposed legislation for consistency with human rights law. Carole Saindon, a media relations advisor for the Department, mentioned in an email that the department “is confident its legal reporting obligations are being met.”
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 proceed 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.
Joanna Gualtieri, a former whistleblower and founder of the whistleblower advocacy group FAIR, says that Schmidt’s argument “raised a wide range of political questions such as whether the Conservative government’s crime measures violate Charter rights.”
The case has led Opposition Members of Parliament to question the Department’s process. In a recent parliamentary debate over Enhancing Royal Canadian Mounted Police Accountability Act, NDP MP Pat Martin questioned whether the proposed amendments violate the Charter. He stated, “the Conservatives cannot tell me that they are not launching stuff into this House of Commons that may not have been vetted properly by the Department of Justice officials, as according to whistleblower Edgar Schmidt.”
The issue has also been raised in the House of Commons standing committee that deals with Justice issues, in a question of privilege raised by NDP MP Pat Martin and by way of a private member’s bill proposed by Irwin Cotler, former Minister of Justice.
As at April 2014, the court action was winding its procedural way toward trial.
- 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.
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.
Photo by Dave Chan/Globe and Mail.
Date published: 30 April 2013
Date updated: 23 May 2014
Edgar Schmidt speaks out about whistleblowers being silenced and his experience to defend the Charter of rights and freedoms.