Harper government: "Screw your charter rights!"

Lawyer takes on Justice Department

Former federal employee's lawsuit draws attention to how often government has clashed with courts over Charter of Rights

Sean Fine/Justice Writer
Monday, September 21, 2015


Edgar Schmidt says the Justice Department fails to warn the Minister if a proposed law isn't consistent with the Charter. (Dave Chan for The Globe and Mail)

Edgar Schmidt was once a lawyer earning $155,000 a year for the federal Justice Department, examining proposed laws for consistency with the Charter of Rights. But he felt uneasy about the way he was told to do his job, believing that officials in his own department - and the Justice Minister himself - were involving him in breaking the law. So he sued his employer.

Monday, in an Ottawa courtroom, his lawsuit against the Justice Minister, Deputy Justice Minister and the Department comes to trial, calling attention to an issue that has received little notice thus far in the federal election campaign, the Conservative government's frequent clashes with the courts over the Charter of Rights.

The Justice Minister is required under a 1985 law to tell Parliament if a proposed law is not " consistent" with the Charter. To Mr. Schmidt, a law is either consistent or it is not. But his supervisors in the Department didn't agree.

"Oh, that's not what we do," he says he was told. "We ask ourselves whether there's an argument." And even if the argument has less than a five-per-cent chance of success in the courts, it can still be "credible" - on other words, consistent.

"That is a kind of double speak," the now-retired Mr. Schmidt says. (The Justice Department suspended him when he sued and, after six months without  pay, he retired.) "Most of us, when we hear the word 'credible,' think 'worthy of being believed.' But that's not what the Department meant."

If he wins, "it means government will likely pay a lot more attention to the Charter consistency of their legislation ," he said in an interview.

The Schmidt case lacks the sex appeal of the Mike Duffy trial about alleged fraud and bribery in the Senate, of the criminal trial of Bruce Carson, the former staffer in the Prime Minister's Office, charged with influence peddling. Nor is it limited to the current government, the Justice Department's interpretation of the 1985 law goes back many years.

But the trial raises sharp questions on governing in the Charter era for the Conservative government. No other government has clashed so often with the courts on Charter rights.

From refugee health-care cuts, to mandatory minimum sentences for illegal gun possession, to an end to supervised use of illegal drugs at a Vancouver medical clinic, to retroactive loss of early parole for non-violent offenders, many Conservative laws have been struck down by the courts. (Three Supreme Court judges supported the mandatory minimums; but in several other cases, the court was unanimous  in rejecting Conservative laws.)

To the federal government the case is about carving out a space for elected politicians, not judges to decide which laws to write. "Democracy is about who makes the difficult decisions about what a 'right answer' might be,' the Justice Department argues in an affidavit filed with the federal Court of Canada. "It is for the Minister alone to decide whether he concludes that he has ascertained that a provision in a bill is inconsistent with guaranteed rights."

It says that Mr. Schmidt's approach to examining legislation would harm the principle that the civil service is neutral and supports the government of the day. "Political neutrality calls for an examination standard that supports the Minister in performing his duties, not one which purports to dictate how he should exercise them."

But to the 62-year-old Mr. Schmidt, the government's neutrality argument is faulty." It starts from the wrong promise. It assumes that your loyalty is owed to the government. It's not The public service owes its loyalty to the Canadian democratic constitutional state." He likens Justice Department lawyers to auditors for Enron, a U.S. energy company that engaged in fraud, who deemed their job to serve the executives, rather than the company itself.

The Justice Department lawyer who sued his employer is the son of Mennonite farmers from rural Manitoba. He was no rebel till late in his career. "Mennonites have a fairly strong streak of skepticism about the legal system. It grows out of their understanding of the New Testament. I think there's an instruction of Paul in one of his letters, 'Why are you taking our fellow believers to court? Can't you find a way of resolving things among yourselves?'" But he came to believe that law establishes clear agreements that help to avoid disputes.

"It was one of the reasons being a legislative drafter appealed to me. It was about helping a government that wanted to act in the public interest, find ways to express policies and implement them." He believes the seeds of his unlikely rebellion were planted in his childhood. "Our family was not shy on debate. It was never assumed on our family that you could't express an opinion that was contrary to someone else's."

Since the Justice Department formalized its 'credible argument" interpretation of the law in 1993, there has not been a single instance in which the Justice Minister has advised Parliament that a law is not consistent with the Charter.