Edgar Schmidt courageously blows the whistle

Even at the risk of his reputation and livelihood, Edgar Schmidt couldn't stay quiet any longer.

For more than a decade, the senior Justice Department lawyer has been trying to convince his bosses that they are breaking the law by inadequately evaluating whether proposed bills violate the Charter of Rights and Freedoms. When he was finally satisfied that no one would ever listen to him, he decided to sue the government.

Before a federal judge last week, Schmidt maintained that government lawyers are instructed to raise possible Charter conflicts only when the violations are unambiguous. Even if a bill is deemed to have a 95 per cent probability of contravening the Charter, as long as some argument, however dubious, can be made in its defence, the minister is not to be notified.

That's fine, says the government. It responded that Justice Minister Rob Nicholson, himself a lawyer, is capable of asking for a more detailed report when a "review is not stringent enough." But why would he do that when as minister he is responsible for a standing request that reviews not be stringent?

One reason to hope he would is that the minister of justice is also the attorney general. He's charged both with making policy and evaluating its legality -- a conflict, political scientists often point out, that can be mediated somewhat by impartial advice from the public service. If it's sought.

The justice minister is obligated by law to alert Parliament whenever he is advised of a potential conflict between legislation and the Charter. The fact that he has never had to do so may reflect a dearth of advice rather than consistently sound bills. In the past month alone, two provincial courts have overturned legislation on human trafficking and mandatory minimum sentences on constitutional grounds. Something is wrong.

For saying so -- and, ostensibly, for violating a confidentiality agreement -- the government suspended Schmidt without pay.

That did not sit well with the presiding judge, Simon Noel. "The day after the filing of this statement (by Mr. Schmidt), bang: 'You're suspended,' " said Noel. "It's unbelievable... (the government) has done everything it can to kill this thing. The court doesn't like that... We see that in different countries and we don't like it... Canada is still a democracy."

Schmidt seems willing to pay a price to keep it that way. During an interview on CBC Radio's As It Happens, the lawyer said that after a decade fighting within the system, he decided finally to bring the matter before the courts only after a recent trip to Egypt underscored "how fragile democracy is and how much it needs care and tending."

How vulnerable it is, for instance, to opaque, legally ambiguous legislative processes -- or the stifling of dissent.

Republished from the Winnipeg Free Press print edition January 22, 2013 A6