Documents in the Edgar Schmidt Whistleblower Case
As most everyone will know, the story broke last week that lawyer Edgar Schmidt is suing the federal Attorney General because of a practice within the Department of Justice, where he is employed, that too easily finds legislation passing the Charter “sniff” test. Two documents in that case are available on Slaw via the links below.
Schmidt’s job is to consider proposed legislation under provisions in three statutes:
- s.3 of the Canadian Bill of Rights, SC 1960, c 44:
. . . the Minister of Justice shall . . . examine every regulation . . . and every Bill introduced in or presented to the House of Commons by a Minister of the Crown, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of this Part and he shall report any such inconsistency to the House of Commons
- s.3(2), (3) of the Statutory Instruments Act, RSC 1985, c S-22, which require an examination of regulations to ensure they’re not ultra vires and:
[do] not trespass unduly on existing rights and freedoms and [are] not, in any case, inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights
- s.3 of the Canadian Charter of Rights and Freedoms Examination Regulations, SOR/85-781 (pursuant to the Department of Justice Act, RSC 1985, c J-2):
the Minister shall . . . (a) examine the Bill in order to determine whether any of the provisions thereof are inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms . . .
In his statement of claim, available here, Schmidt contends that the policy of the Department does not comply with these requirements and has not done so for a long while. He has sued in Federal Court and asks for declarations affirming the errors he alleges and setting out what he argues would be appropriate policy directions.
I won’t take you through the claim in detail, except to note the essence of it. Schmidt states that:
12. Since about 1993, with the knowledge and approval of the Deputy Minister, an interpretation of the statutory examination provisions has been adopted in the Department to the effect that what they require is the formation of an opinion as to whether any provision of the legislative text being examined is manifestIy or certainly inconsistent with the Bill of Rights or the Charter and, in the case of proposed regulations, whether any provision is manifestly or certainly not authorized by the Act under which the regulation is to be made.
As I read the statement of claim, he alleges that this in turn has been construed by Department counsel to mean that, with respect to a statutory provision, “no advice is given to the Minister that he or she . . . has a duty to report to the House . . .” so long as:
some argument can reasonably be made in favour of its consistency [with the Charter]—even if all arguments in favour of consistency have a combined likelihood of success of 5% or less . . .
Litigators might like to see the Court docket as well, available here.
What will happen if Mr. Schmidt wins this case? Will it mean that past legislation is invalid, and if so, will the people who suffered the consequences be given a new trial, etc.?
How many lawyers is Mr. Schmidt up against, and what are they getting paid?
What is happening in these hearings; who is winning?
How come no one (e.g., Canadian Civil Liberties Association) has stepped up to the plate to assist Mr. Schmidt?
Edgar Schmidt has written to Slaw to give us the URL for his website which contains a comprehensive set of documents respecting the litigation: https://sites.google.com/site/esvagcanada/court-documents
My brief review of Mr. Schmidt’s case has all the makings of Judicial History where allegedly breaking the rules and the law, “in the public interest”, may not favour absolute immunity for the AG. In light of this whistleblower’s claim the question of public confidence, in the office of the Attorney General of Canada, may suffer when the public realizes that the person who is in a position of knowledge in respect of the constitutional and legal impact of his conduct ignores concerns and warnings from a lawyer in his own Department. I am hoping that the court ‘s role in this case will strike at the very existence of an absolute immunity under two guiding principles: equality under the law (especially when the alleged wrong has been committed by a person who should be held to the highest standards of conduct in exercising a public trust; and any infringement of the Canadian Charter of Rights and Freedoms constitutes “improper purpose” aimed at gaining a private collateral advantage.
Historically (since this problem is alleged to have taken place over many years) the court will need to determine if the systemic form of the directives, as practiced, is inconsistent with the status of ” minister of justice”. Ultimately, if all the allegation can be proven, then policy changes should be court ordered and monitored. By way of summary, if Mr. Schmidt can prove his case, then I believe he has earned my respect and admiration as a first-class Whistleblower!
I’m pleased to see that the Eric Schmidt case isn’t going to disappear from the blogs just yet. For a really good analysis based on Schmidt’s allegations, see The Legality of Legal Advising by Alice Woolley over on ABlawg, the University of Calgary Faculty of Law blog.
To quote Alice Wooley’s article: “A good argument is one based in existing precedent or statute, or plausible statutory or constitutional interpretation, and posting the sorts of facts that will arise under the law, should at least raise this chance of success to 30 or 40%.” …”When the likelihood of success is only 5%….nineteen out of twenty cases will go against you.”
Does the AG have wiggle room on a good faith basis “for asserting he complied with the requirement of the Dept. of Justice Act and other legislation?” Has the Minister ever declared to the House of Commons if any Bill is inconsistent with the Charter? Why is the government’s legislative vetting process so secretive? Why has this allegedly unethical and illegal conduct not between reported before now?
“It is the law that justifies and constrains the lawyer-client relationship” not “employment affairs” or “reporting practices between the Minister and Parliament”. Therefore, the proof of alleged unethical and illegal conduct, within the Ministry of Justice, must include the release of all materials, for judicial review, based on alleged “misuse of authority.” Do the gatekeepers of our democratic process, Department of Justice, have a serious systemic legal problem which may have impacted the methods of statutory interpretation and the legal concept of reasonableness; “which is one of the fundamental components of the current system of judicial review.” And finally, the access to information is connected with the concept of democracy and supports two important principles: 1) public right to administrative information, a cornerstone of our democratic system, and 2) the absolute transparency and accountability in the administration (decision-making process and policy rationales) governing the public interest.
What is reasonable and probable in this case will be determined by the court . I am hopeful that the court will also take an active role in addressing ongoing system reform.
In theory, if judgment favours Mr. Schmidt, the legal question remaining is: how to remove constitutionally invalid legislation ? (A problem I have unsuccessfully worked on for 7 years.)
As I understand the process, a judicial review can include orders of removal (“disappearing ink”), by the AG, which would invoke provisions to declare the legislation as constitutionally invalid. What say ye?
To quote Ronald Reagan: “The govenment is like a baby’s alimentary canal, with a healthy appetite at one end and no responsibility at the other.” :)
I attach the utmost importance to Mr. Schmidt’s case against the AG for reasons not yet explored. As some SLAW readers will already know, I am in the throes of finishing a thesis on the allocation of proof burdens in litigation between First Nations and the Crown, and the attitudes displayed in Court by the Crown. Mr. Schmidt’s documentation of the Crown’s attitude to Charter rights, rights under the Bill of Rights and the Statutory Instruments Act form a fascinating hedge around the section 35 rights on which I am writing. Briefly, if Mr. Schmidt can sustain the case that, in brief terms, successive AGs and Deputy AGs treat the rights of both MPs and the entire citizenry so cavalierly then it will not surprise anyone that the same officials will treat Aboriginal and treaty rights (formerly “Indian” rights) no less cavalierly.
Michael, I was very pleased to read your post and learn that you are finessing the concept of “burden of proof” and equally the “balance of probabilities”. A legal concept that enjoys an “acceptable level of conviction” as this relates to incidence, sufficiency, flexibility and satisfaction in our courts. What role does the court have in exercising their “fact-finding powers” to sufficiently protect the public interest against bias? Does the court have a duty and responsibility to restore Societal Trust, in gov’t practices and policies, where a clear case of violation exists? Thank you for alerting me to the possible ripple effect as this relates to the First Nations and the Crown
“The best time to plant a tree is twenty years ago. The second best time is today”–Chinese Proverb.
Good to see you here Michael Posluns. Long time no see. Kwitsel Tatel and I have been making similar connections concerning relationship between the Edgar Schmidt case and the systematic denial and negation, rather than recognition and affirmation, of existing Aboriginal and treaty rights by the Ministry of Justice when it comes to the federal Crown’s positions in venues of adversarial litigation. So far not one law, not even the Indian Act, has been struck down for being inconsistent with section 35. As for the onus of proof, the Sparrow case puts some onus on the federal Crown to prove that infringements of section 35 are justified whereas the Van der Peet case puts a huge onus on Aboriginal litigants to prove continuity with past customs, etc etc. It would be great to exchange notes on this matter in more detail. Can’t wait to see your thesis. Hall’s E-Mail is firstname.lastname@example.org. Below please find a link that might help lead you into some of the literature the case has been generating. We are starting to make references to the Schmidt case in our submissions to the Chilliwack Law Courts. Please see
Readers may be interested in a website established by Edgar Schmidt to keep the public informed as to the progress of his action: CharterDefence.ca. Court documents are available there and there’s a blog as well to report on developments.
Simmon, thanks for the heads up.
I visited his informative website and was pleased to learn that the court has determined that Mr. Schmidt’s legal representation costs are to be covered by the Department of Justice. I am certain that this is one “whistleblower” who will be heard and for all the right reasons.
Should also be looking at Bill S-12. This one allows, among other things, for regulations to incorporate by reference documents made by the regulation maker. In other words, these documents would not have to pass muster under the Statutory Instruments Act and the safeguards it provides with respect to basic rule of law principles.
Imagine…you could be charged with the breach of a provision that is nowhere in the statute books.
This Bill is a real wolf in sheep’s clothing.