A Dodek: Why won’t MacKay release his legal advice on prostitution?

ADAM DODEK  Contributed to The Globe and Mail

Published Tuesday, Jul. 08 2014, 12:34 PM EDT
Last updated Tuesday, Jul. 08 2014, 12:42 PM EDT

Minister of Justice Peter MacKay has confidently asserted two things about Bill C-36, the Government’s new proposed prostitution law: that it will certainly be challenged in the courts and that it is constitutional. Mr. MacKay is undoubtedly correct that there will another round in the legal battle over the country’s prostitution laws that will make its way back to the Supreme Court. Until then, we will not know if he is correct about the bill’s constitutionality.

Mr. MacKay can, however, back up his second claim by showing Members of Parliament and Canadians the legal advice that supports his confident assertion. And he should.

Canadian governments have remained steadfast in their refusal to publicly reveal the legal advice that forms the basis for many of their decisions. Governments love to rely on solicitor-client privilege – the protection afforded by the law to confidential communications between a client and lawyer. The Supreme Court of Canada has recognized solicitor-client privilege as a fundamental legal and civil right that enjoys constitutional protection in certain circumstances. For reasons that I have argued elsewhere, it does not make a lot of sense to talk about the government enjoying such constitutional protection.

For the rest of the post, click HERE

Workshop: Ethics and Civility in the Practice of Law

A 1/2 day program on Ethics and Civility in the Practice of Law for the Canadian Institute for the Administration of Justice. The program will be held in Edmonton at the Sutton Place Hotel on September 26, 2014 from 8:30am -12:30pm.

From the flyer:

A half-day, hands-on, practical seminar addressing some of the more intractable ethical issues lawyers, judges, and tribunal members must deal with in practice: Do the courts, and law societies have a role in regulating civility and, if so, how do their roles differ? What role is there for professional bar associations? What unique ethical and civility issues arise in the context of administrative proceedings? What special ethical and civility issues apply to and arise for in-house and government lawyers?

Agenda and additional information

Adam Dodek and Michael Morris on Ethical Challenges of Government Lawyers

A McGill Law Journal podcast on this topic can be found here:



“Despite a significant place in the legal profession, little attention has been given to the unique ethical challenges of the government lawyer. We spoke with Professor Adam Dodek (University of Ottawa) and Michael Morris (Department of Justice) on their efforts to change that.”

DOJ: Values and Ethics

The Department of Justice has published a Values and Ethics code on their website HERE.

Chapter I – Values


The Government of Canada is committed to ensuring that the federal public sector[1] remains professional, non-partisan and ethical, and worthy of the trust and respect of Canadians. As public servants, we contribute to good governance, to democracy and to the well-being of Canadian society. We are committed to respecting the law and to upholding the highest standards of integrity and fairness.

In accordance with section 6 of the Public Servants Disclosure Protection Act (PSDPA), the Values and Ethics Code of the Department of Justice (the Code) sets out the values and ethics that guide public servants at the Department in all their professional activities. It also provides a set of guidelines and principles to support ethical behaviour and decision making for all public servants. Established in consultation with the Department’s employees and bargaining agents, it is our common guide.

The public servants at the Department are proud to work together, drawing on the richness of its diverse staff. As a group, we are conscious of the fact that Canadians expect transparency and respect for the principle of accountability from public authorities at all levels and that this has an impact on their work.

This firm commitment to the values and ethics enshrined in the Code will allow us to carry out the mandate of the Department and build a healthy and productive work environment that fosters innovation, while at the same time meeting the high expectations of Canadians. This is our collective commitment, and it is our individual responsibility.

Table of Contents

For the full document, go to their website HERE.

(2013) 26 Canadian Journal of Administrative Law and Practice

The recent volume of the Canadian Journal of Administrative Law and Practice (26(2)) is legal ethics orientated.  In addition to Alice Woolley’s piece on good character there is an article by Simon Ruel, “What Privileges Arise in the Administrative Context, and When” (at 141) and Michael Morris and Sandra Nishikawa have an article “The Orphans of Legal Ethics: Why government lawyers are different – and how we protect and promote that difference in service of the rule of law and the public interest” (at 171).

A Wherry, “Pat Martin vs. The Justice Minister”

Written by by Aaron Wherry and published on MacLean’s website on Thursday, March 7, 2013 11:32am

For the original article and comments on the Maclean’s website, click HERE

Ed Schmidt, a lawyer with the Department of Justice, is currently challenging the department in Federal Court—seehere and here—over the department’s obligation to inform Parliament if a piece of legislation violates the Charter of Rights and Freedoms.

The NDP’s Pat Martin has now taken this issue to the House, raising it as a matter of privilege.

Mr. Schmidt alleges the Department of Justice counsel have adopted a policy of interpreting the constitutional duty as meaning “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 reasonable be made in favour of its consistency with the charter, even if all the arguments in favour of consistency have a combined likelihood of success of 5% or less”. If these allegations are in fact true, my privilege as a member of Parliament, indeed the privileges of each member of Parliament, have been breached.

Supposedly, when a bill is placed before the House as government bill, every member can be reassured by law that the bill is not in violation of either the Bill of Rights or the Charter of Rights and Freedoms by the fact that the Minister of Justice and Attorney General of Canada has examined the bill and finds it to be compliant with these fundamental Canadian laws. If the allegations of Edgar Schmidt are true, we members cannot rely on the performance of these statutory and constitutional duties to know that a bill is consistent with the Bill of Rights and charter in deciding our vote as the bill proceeds through the committees and the House. Based on these allegations, the Department of Justice is approving proposed legislation that has only a mere remote possibility of being consistent with the charter or the Bill of Rights. In contrast, Schmidt argues that the statutory examination provisions require the Department of Justice to determine whether the proposed legislation is actually consistent with the charter or the Bill of Rights, not on the possibility of whether or not the legislation could be consistent.

This hinders us as members of Parliament in the performance of our parliamentary duties. It constitutes an interference in the performance of our duties to exercise due diligence of the bills before us. I believe every member of the House would agree that if these allegations are proven to be true, they show contempt for the authority and dignity of Parliament.

Liberal MP Irwin Cotler is due to add his concerns and there will no doubt be a response from Justice Minister Rob Nicholson before the Speaker makes a ruling.


A Woolley: The Legality of Legal Advising

Posted to ABLawg  on January 25, 2013 by Alice Woolley

For the webpage and PDF of the post, click HERE

Matter considered: Edgar Schmidt v Canada (Attorney General) Federal Court File #T-2225-12


On December 13, 2012 Edgar Schmidt, a Department of Justice lawyer, filed a Statement of Claim in Federal Court naming the federal Attorney General as Defendant. The Statement of Claim alleges that the Minister of Justice and the Deputy Minister of Justice have violated their obligations under various pieces of legislation that impose duties on the Minister of Justice to examine proposed legislation to determine if it is “inconsistent with the purposes and provisions” of the Canadian Bill of Rights or the Canadian Charter of Rights and Freedoms, and to advise the House of Commons if it is so (see in particular: section 3 of the Canadian Bill of Rights, SC 1960, c 44; section 4.1 of theDepartment of Justice Act, RSC 1985 c J-2; section 3(2) and (3) of the Statutory Instruments Act, RSC 1985 c S-22). Continue reading

S Fodden: Documents in the Edgar Schmidt Whistleblower Case

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. Continue reading

B Curry: Judge raps Justice officials for treatment of whistle-blower


OTTAWA — The Globe and Mail

Published Wednesday, Jan. 16 2013, 6:00 AM EST; Last updated Wednesday, Jan. 16 2013, 6:24 PM EST

Ottawa is crafting legislation that risks running afoul of the Charter of Rights and Freedoms without informing Parliament, a federal lawyer charges.

In a highly unusual case, Department of Justice lawyer Edgar Schmidt is challenging his own department in Federal Court and revealing details about the internal guidelines used by federal lawyers. The department accuses Mr. Schmidt of violating his duties as a lawyer and public servant and has suspended him without pay. Continue reading