Simon Fodden

Posted on Slaw website HERE on January 23, 2013

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 ismanifestIy or certainly inconsistent with the Bill of Rights or the Charter and, in the case of proposed regulations, whether any provision is manifestly orcertainly 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.