Wednesday, May 15, 2013
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 almost certainly to be illegal and unconstitutional.” After the court case was launched, Schmidt was suspended without pay for “violating his duties as a lawyer and public servant.”
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 could potentially violate the Charter, the Justice Minister is obligated to notify Parliament.
Edgar Schmidt is a senior lawyer at the federal Department of Justice. In December 2012, Schmidt 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 any chance of successfully defending draft legislation against a human rights challenge that is 5% or higher is deemed sufficient to justify a decision not to advise the Deputy Minister of Justice of problems with human rights compliance. The result is that the House of Commons would not get advised accordingly.
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.” However, his colleagues and superiors warned him that his claims would hamper his eligibility for promotion.
Since instigating legal action against the federal government, Schmidt has been suspended without pay and has been barred from his office.
At a hearing on January 15, 2013 before the Federal Court, Mr Justice Noël 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 Noël added, “It’s unbelievable … Your client 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.” Alain Prefontaine, the department lawyer representing the federal government in the case, maintained that “the Minister’s reporting practices are an issue between the Minister and Parliament” and has thus asked the court to drop the case.
Recently, Edgar Schmidt expressed his 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.”
At a court hearing in early March, Justice Noël ordered the federal government to pay for Schmidt’s legal expenses, stating that “the case is in the public interest.”
Joanna Gualtieri, a former whistleblower and founder of the whistleblower advocacy group FAIR, indicated 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.”
- 1998: Edgar Schmidt is hired by the Department of Justice to serve as general counsel.
- December 2012: Schmidt files suit against the federal government for not following proper procedure in examining inconsistencies of bills with the Charter. As a result, Schmidt is suspended without pay.
- January 2013: Justice Simon Noël of the Federal Court criticizes the federal government for suspending Schmidt.
- March 2013: Justice Noël orders the government to cover the cost of Schmidt’s legal challenge, stating that the case is in “the public interest.”
Role or PositionEdgar Schmidt is a senior lawyer in the federal Department of Justice. He served in the Department since 1998. As Special Advisor to the Legislative Services Branch, Schmidt drafted legislation and provided advice, including on compliance with the Canadian Charter of Rights and Freedoms.
Implications and Consequences
- Democracy: Inadequate examination of proposed legislation for compliance with human rights appears to infringe Canadian legal requirements that dictate the degree of scrutiny to which legislation must be subject. Falling short of the legal standard raises questions of the degree to which the rule of law is respected by the federal government of Canada.
- Transparency: Suspending Schmidt from his post without pay is 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 operations of the public service but also the public interest.
- 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.