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Former DOJ lawyer calls for amendments after losing Charter challenge

Schmidt considering appeal after Federal Court reaffirms low standard for constitutional review
|Written By David Dias

A former senior Justice Department lawyer who is challenging Ottawa’s constitutional review process says the rise of the Trudeau Liberals will not influence his decision on whether or not to seek an appeal after the Federal Court yesterday dismissed his case.

‘[I]f your standard is an argument, it’s virtually no standard, in my view,’ says Edgar Schmidt.
“I’m not sure that the change in government changes anything with respect to these examinations,” says Edgar Schmidt, whose job under the Harper government was to review draft legislation for constitutional inconsistencies.

“If the minister were to say, ‘We are going to amend these examination provisions to ensure that in the future more rigorous examinations are conducted’ . . . that would make an appeal sort of unnecessary,” Schmidt tells Legal Feeds.

Schmidt, who is now retired, was suspended without pay in 2012 after launching a court challenge in which he alleged that the government had been ignoring its statutory obligation to report potential constitutional inconsistencies to Parliament when tabling legislation.

Though the current government decided last week to launch a study of how constitutional issues are flagged in Parliament, Justice Minister Jody Wilson-Raybould has yet to commit to a higher standard of review.

Under the Conservative regime, Ottawa was accused of playing politics by passing tough-on-crime legislation that, according to civil servants like Schmidt, had virtually no chance of passing muster with the judiciary. Many of these laws were ultimately struck down by the Supreme Court of Canada.

This exercise in political brinksmanship — daring the judiciary to strike down popular laws — led to years of growing animosity between the executive and judicial branches of government, and it’s one of the key reasons why, according to Schmidt, the constitutional review process should be more meaningful.

“If this truly is the law, that ministers and government are free to act in ways that they themselves believe is unconstitutional, I think that creates a context for unnecessary tension between the branches of the state.”

Schmidt’s arguments, however, were dismissed yesterday at the Federal Court by Justice Simon Noël, who issued a 146-page decision that reaffirmed a low standard for constitutional review and left it to the minister of justice alone to decide whether any “credible argument” can be made in favour of constitutional consistency.

Noël’s decision, moreover, suggests that Parliament intended for a weak standard for constitutional review, and that the minister of justice should not be constrained by the reports of civil servants.

“The Minister of Justice is not Atlas, carrying the world of guaranteed rights on her shoulders,” the decision states. “The legislator aimed to promote consistency with guaranteed rights but did not impose on the Minister of Justice the onerous and most likely impossible responsibility of guaranteeing inconsistency-free legislation.”

Schmidt says he believes the decision is flawed and that Parliament would not have created a review process that could be so easily circumvented by concocting an argument in favour.

“I find it very hard to imagine any law for which you can’t come up with some argument,” he says. “So if your standard is an argument, it’s virtually no standard, in my view.”

In his submissions to the court, Schmidt says he and his counsel drew a parallel with fiduciary duties held by corporate directors and officers — where directors and officers are compelled to serve the interests of the entire organization, regardless of the stake held by any shareholder.

Similarly, he says, public servants must not be forced to serve the interests of government at the expense of the state.

“When I was suspended without pay upon filing this claim, the allegation of the department was that I was acting disloyally. Well, you have to know to whom you were supposed to be loyal before you can conclude whether there is disloyalty, right? And my view is that public servants are state employees.

“Citizens have a right to expect that their government and their Parliament will comply with the most fundamental decision of the Canadian state — that’s the Constitution. They have the right to expect that Parliament and government and ministers will act in ways that they honestly and reasonably believe are consistent with the Constitution.”

Despite the initial impression that Noël’s decision is wrong, Schmidt says he hasn’t decided whether to pursue an appeal.

“I’ll have to consider with counsel whether an appeal is warranted, and whether or not we can stay with that initial impression.”

  • Ph. D.

    Nadejda Aletkina
    The biggest problem – is that the judges do not have any enforceable law on their ethical code. The Ethical Rules for Judges – is not a law, it’s just a wish. Canada did not sign the Bangalore principles of Judicial Conduct. This the reason why our judiciary lacks integrity, and explains why there are so many court decisions that cannot stand constitutional challenge, so many innocent people get destroyed for nothing. In my recently filed SCC leave application I am proving that 12 judges “contravened an Act of Parliament by wilfully doing anything that it forbids or by wilfully omitting to do anything that it requires to be done” – they stepped over the purpose of the sec. 105(2) of the Courts of Justice Act. So, based on Criminal Code sec. 126(1) those 12 judges must be imprisonment for a term not exceeding two years
  • Ph. D.

    Nadejda Aletkina
    The biggest problem with the Justice system is that the judges do not have a law enforcing their integrity, impartiality and knowledge. In my recently filed SCC Application for Leave to Appeal I am proving that 12 judges stepped over several Statutes, in order to eliminate me, to bring me to a destruction on political grounds, and loot on my property because I am a witness of the judges' crimes against the Rule of Law. I am asking the SCC and the Attorney General to charge those 12 judges based on sec. 126(1) of the Criminal Code: Disobeying a statute
  • Barrister and Solicitor

    Rob Normey
    I appreciate this article on a fundamental legal issue. Governmments should surely aim to enact legislation that is at least likely to be consistent with the Charter of Rights and Freedoms. One would think that the federal legislation at issue here would act as a safeguard for ensuring that a reasonable standard of review was being applied in each instance, or in the alternative, that because of some urgency or necessity the government wished to proceed, and was willing to alert Parliament as a whole to a potential problem. This would allow for a fulsome debate of the issue. It will be interesting to see how a higher court will view the matter, should an appeal be taken.
  • is the problem elsewhere?

    John G
    Maybe the real problem here is the statutory requirement to inform Parliament of the constitutionality of any statute. Why is that needed? It looks like a symbolic rule to me, and symbols can be risky.

    A government should be able to legislate knowing that there is a chance of constitutional invalidity. There is no bright line as to how much of a chance is too great, especially since the chance cannot be measured mathematically.

    Does any other government in Canada have a similar rule, to disclose its internal legal opinion (or the result, at least) to the legislature? It makes no sense.

    Let Parliament consider the bills and let the courts judge them - and let the people judge the government by its record. But the advance public screening serves no purpose. It does not - clearly, from this case - keep the government 'honest' about trying to be safe - and it should not have to be 'safe'. It should be able to test the limits for good reasons.

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