Wednesday, July 09, 2014

Is Peter MacKay setting himself up for another big fat kick by the Supreme Court of Canada in ..... Yikes!

Good Day Readers:

The Economist has always been characterized by excellent research, writing, perspective and the ability of see the big picture in a page or less. Let's begin by looking at what it had to say about the judicial revolt currently under way in Canada against the Harper government. Pay particular attention to the passage highlighted (bold) by CyberSmokeBlog. More will be said about it shortly.

Judicial activism in Canada

Charter Fights

Monday, July 7, 2014
THE ruling Conservatives in Canada never much liked the Charter of Rights and Freedoms embedded in the Constitution by a Liberal government in 1982. In opposition they feared that making the Charter part of the constitution would undermine the supremacy of parliament; courts would be able to strike down laws as unconstitutional if they violated Charter Rights. In power, they have seen cherished bits of their legislative agenda suffer that very fate.

The latest setback came on July 4th with a federal-court ruling that the government’s cuts to health care for refugees made in 2012 represented “cruel and unusual treatment,” specifically prohibited under the Charter. In his tersely worded response, Chris Alexander, the immigration minister, said the government would appeal against the decision at the Supreme Court. If recent rulings are anything to go by, the government is unlikely to achieve satisfaction there. In the past year, the Supreme Court has invoked the charter to strike down Canada’s prostitution laws on the ground that they put the security and lives of prostitutes at risk; to declare unconstitutional a law allowing police to wiretap without a warrant; and to restore early parole for some convicts.

A number of high-profile Supreme Court decisions not involving the charter have also gone against the government, even though the majority of justices now on the court were appointed by Stephen Harper, the Prime Minister. The setbacks include the humiliating rejection of his latest nominee to fill one of spots on the bench reserved for Quebec, and the rejection of Mr Harper’s plans to reform the Senate without reopening the constitution.

The muttering among Conservative supporters about “judicial activism,” which began in the early days of the Charter when the Supreme Court upheld same-sex marriages and struck down abortion laws, is growing louder. Following the prostitution ruling, Jason Kenney, the Employment Minister, said “the judiciary should be restrained at the exercise of judicial power in overturning a democratic consensus.” More recently, the Prime Minister’s office tried to suggest the Chief Justice had acted inappropriately in the rejection of its nominee.

Yet the government itself, not meddling judges, may be more to blame. Edgar Schmidt, a former lawyer in the Justice Department, is suing the government for not subjecting proposed legislation to sufficiently rigorous scrutiny to see if it conforms to the constitution prior to presenting it to parliament. Simon Potter, a former Head of the Canadian Bar Association, cited Mr Schmidt’s points in a speech to the association last month in which he accused the government of not doing enough to defend the Charter and of fostering disrespect for the judiciary. If Mr Schmidt’s allegations are correct, says Mr Potter, “the Executive has decided to take as many freedoms away from us as possible, rather than as few as possible.” He is dismayed that there is more legislation in the pipeline that looks ripe for charter challenges.

One step this government is not prepared to take is to revoke the Charter itself. It would involve lengthy, arduous and potentially inconclusive constitutional negotiations with the provinces. More importantly, even the government’s own surveys show the Charter is hugely popular with the majority of Canadians. When it asked Canadians to suggest the people and feats they want celebrated in 2017, the country’s 150th birthday, Medicare, peacekeeping and the Charter of Rights and Freedoms were the top three accomplishments. Pierre Trudeau, the former Liberal prime minister who brought in the charter, was the most inspiring Canadian.

Mr. Edgar Schmidt's lawsuit may be particularly relevant in light of the aforementioned should young "Helicopter Pete" MacKay insist on continuing to thumb his nose at the Charter. So what say you? After a little more digging, read on.

Amici Curiae: Why Edgar Schmidt is suing the Depertment of Justice


Edgar Schmidt is a senior lawyer with the Department of Justice. That is, he used to be a senior lawyer with the Department of Justice until he was suspended on December 14th, 2012 after suing the Department by alleging that it has been conducting inadequate reviews to ensure proposed legislation complies with the Canadian Charter of Rights and Freedoms (the “Charter”).

The Department of Justice plays an important role in Canadian policy-making: it reviews proposed bills and legislations to make sure they are compatible with human rights legislation or the Charter. If the proposed legislation does not comply, the Department reports the inconsistency to the House of Commons. At least that’s the theory.

Section 4.1 of the Department of Justice Act outlines how regulations and bills are examined, which specifically provides that “the Minister shall…examine every regulation…and every Bill introduced… in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Minister shall report any such inconsistency to the House of Commons at the first convenient opportunity.”

Based on this provision, the Minister of Justice has a duty to report to the House of Commons any inconsistency a bill or regulation has with the Charter. In addition, the Minister of Justice has a duty to report any inconsistency a bill or regulation has with the Canadian Bill of Rights under section 3 of the Canadian Bill of Rights along with similar duties under section 3(2) and 3(3) of the Statutory Instruments Act.

The issue is that the Department of Justice has been interpreting these duties in a loose – and arguably unlawful – way.

Schmidt alleges that since 1993, with the knowledge and approval of the Deputy Minister, the Department of Justice has applied a different standard than that required under section 4.1 of the Department of Justice Act. Whereas the statute requires officials to report any such inconsistencies with the Charter or the Bill of Rights to the House of Commons, a different interpretation has been followed in the Department by qualifying such inconsistencies into two distinct categories: manifestly or certainly inconsistent.

Schmidt explains how certainly inconsistent provisions are dealt with in the Department in his statement of claim:
“14. Specifically, with regard to its examination under the Department of Justice Act in relation to the Charter, if it is in the opinion of counsel in the Department that:
a. a provision is likely or even almost certainly inconsistent with the Charter – even if the probability of inconsistency is 95% or more -, but
b. some argument can be reasonably be made in favour of its consistency – even if all arguments in favour of consistency have a combined likelihood of success of 5% or less-,
no advice is given to the Deputy Minister that he or she – unless he or she forms a different opinion – has a duty to communicate the concern to a Clerk of the Privy Council.”
Based on these allegations, the Department of Justice is approving proposed legislation that has only the mere possibility of being consistent with the Charter or the Bill of Rights – even if that possibility is an extremely remote one. In contrast, Schmidt argues that the statutory examination provisions require the Department of Justice to determine whether the proposed legislation is actually consistent with the Charter or the Bill of Rights – not on the possibility of whether or not the legislation could be consistent.

Essentially, rather than public officials doing their due diligence to make sure proposed laws comply with our protected human rights, they are passing questionable laws and putting the onus on the Canadian public to challenge the legislation for infringements of the Charter or the Bill of Rights. It’s a frightening proposition. If Schmidt’s allegations are proven to be true, it could mean that Canada is rife with laws that are inconsistent with human rights, if only because of the failings of a government watchdog and the limited resources of a legal system unable to rectify them all.

So you see boys and girls if Edgar Schmidt wins his lawsuit and the Supreme Court rejects amendments to Canada's prostitution laws, not only could young Pete find himself running around Ottawa minus his short and curlies but by association so too could the the rest of the Haper government find itself de-balled ..... yet again! Love it!

Clare L. Pieuk


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