Justice Lawyer Sues Government of Canada

[mpare]

Edgar Schmidt, a Senior Counsel with the federal Departman of Justice, has sued his own employer, alleging - it would appear - that the Department has failed to comply with its statutory obligation to ensure that all federal enactments comply with the Canadian Charter of Rights and Freedoms. This is a serious and troubling allegation, since it would mean, if proven, that the Department has consciously failed to ensure that federal laws do not contravene the very constitutional instrument that was brought into existence to protect Canadians from inappropriate state action. Until he was suspended without pay, Mr. Schmidt was a General Counsel with the Department. This is a very senior designation in the Department, signifying that he had achieved an very high degree of knowledge and expertise in his area of specialty, which was in legislative services. This case bears close attention. Unfortunately, I have not seen the claim so I am unable to comment on it.

http://archive.feedblitz.com/137415/~4543408/11838136/284ee46406338c7059e9e79662436776

http://rabble.ca/blogs/bloggers/dhg/2013/01/edgar-schmidt-and-canadian-democracy

http://m.theglobeandmail.com/news/politics/judge-raps-justice-officials-for-treatment-of-whistle-blower/article7394559/?service=mobile

[mpare]

Re: Justice Lawyer Sues Government of Canada

I have just located a copy of the Statement of Claim for those with an interest in reading it: http://www.slaw.ca/wp-content/upload...t_of_Claim.pdf

[gu1985]

Re: Justice Lawyer Sues Government of Canada

I have just located a copy of the Statement of Claim for those with an interest in reading it: http://www.slaw.ca/wp-content/upload...t_of_Claim.pdf

I'm no lawyer or legal scholar but my reading of the above was that his main contention is that the DOJ doesn't go to full compliance with the Charter. Right? They just look for manifest inconsistencies. The issue I have is that with S.1 of the Charter, you can place limitations, as long as they are reasonable in a "democratic and free society", for which the Courts have established the Oaks test. Does the DOJ do that and is that enough? A lot of these things are up to interpretation. Is he not happy that they go far enough to his liking? Is there a political reason to this? Why go through a court rather than media?

If the DOJ isn't even doing Oaks evaluations and just rubber stamping legislation, I certainly have a problem. But if it's a matter of them doing the required and sufficient but not more, then I think we have a good court system that can address concerns of those who oppose the concerned legislation.

[mpare]

Re: Justice Lawyer Sues Government of Canada

The issue is not whether DOJ goes to "full compliance with the Charter." Rather, it appears that Mr. Schmidt's concern (ably expressed in paragraphs 12 and 18 of his Statement of Claim) is that the mandated review and reporting obligations under s. 4.1 of the Department of Justice Act are not being complied with. He interpretes, not unreasonably, the obligation as requiring the Department to report to Parliament whenever any provision of a Bill or regulation are inconsistent with the Charter. That is, after all, what the Act requires. Rather than do that, he alleges (summarized in para. 18) that the obligation has now been interpreted in such a way as to ask whether there is any possibility (however slight) that the Bill or regulation complies with the Charter. If it passes that minimal test, then no report to Parliament is required. This is a huge difference in interpretation, which in turn can make a significant difference in the kinds of laws that Canada enacts.

His concerns are ably and succinctly expressed in the Statement of Claim so I will not repeat them here. As for whether there is a political reason for filing the SOC, I doubt it. My guess is that Mr. Schmidt felt strongly about what he viewed as the Department's systematic failure to discharge its legal obligations. Having failed to persuade the Deputy Minister (or the Minister) to reconsider their approach, he put the matter in the court's hands. He would have had to know that this would imperil his career given the manner in which this government has dealt with outliers. Given his respect for the law, the court would be the most effective venue for addressing this complaint. If it was limited to being solely a press issue, it would then be subject to the usual spins and insinuations that colour that world.

I'm no lawyer or legal scholar but my reading of the above was that his main contention is that the DOJ doesn't go to full compliance with the Charter. Right? They just look for manifest inconsistencies. The issue I have is that with S.1 of the Charter, you can place limitations, as long as they are reasonable in a "democratic and free society", for which the Courts have established the Oaks test. Does the DOJ do that and is that enough? A lot of these things are up to interpretation. Is he not happy that they go far enough to his liking? Is there a political reason to this? Why go through a court rather than media?

If the DOJ isn't even doing Oaks evaluations and just rubber stamping legislation, I certainly have a problem. But if it's a matter of them doing the required and sufficient but not more, then I think we have a good court system that can address concerns of those who oppose the concerned legislation.

[Bellyhungry]

Re: Justice Lawyer Sues Government of Canada

My head hurts trying to follow this thread.

[mpare]

Re: Justice Lawyer Sues Government of Canada

I'll put together a Cole's Note for you. In the meantime, have a beer or two. Once you realize what's at stake, you'll be glad you drank them.

My head hurts trying to follow this thread.

[mpare]

Re: Justice Lawyer Sues Government of Canada

Bellyhungry, let me see if I can alleviate your headache. At the risk of oversimplifying here is what I see as being at stake based on what I have read on the Internet regarding this claim. Keep in mind that this is my view of what is happening. No doubt, others may see it differently.

1. The Canadian Charter of Rights and Freedoms ("Charter") is a constitutional document that was designed to protect Canadian citizens against unwarranted state action. Among other things, the Charter enshrines every citizen's right: to vote in elections; to have freedom of religion, association and peaceful assembly; to enter, remain and leave Canada; to life, liberty and security of the person; to be secure against unreasonable search and seizures; not to be arbitrarily detained or imprisoned; once arrested or detained, to be told why, to be advised of one's right to retain and instruct counsel, to be tried within a reasonable period of time, and to be presumed innocent; not to be compelled to incriminate oneself; to the equal protection and benefit of the law, and not to be discriminated against. In short, the Charter is a a big deal. It is the cornerstone of the wide away of rights and protections that we as citizens have against the possible excesses of the state.

2. Section 4.1 of the Department of Justice Act was enacted to ensure that all of Canada’s prospective federal laws (whether statutes or regulations) are examined “in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Minister shall report any such inconsistency to the House of Commons at the first convenient opportunity.” In short, the Minister, though his departmental personnel, is required to advise the House of Commons, if federal laws are being contemplated for enactment that are inconsistent with the provisions and objectives of the Charter. Why? Because it was presumably felt that it was not in anyone’s interest to be passing laws that conflict with constitutionally protected rights.

3. Mr. Schmidt claims that since 1993 Justice has not be conducting the reviews in a manner consistent with s. 4.1, nor has the House of Commons been advised on potential inconsistencies as required. Why does he feel this way? Because, according to him, Justice is operating on the basis that notwithstanding that a law may have a 95% probability of contravening the Charter that’s nothing to worry about, if the law has a 5% chance of being found not inconsistent with the Charter. In order words, a prospective law that more likely than not is inconsistent with the Charter will not raise a red flag so long as there is a 5% chance that it might not offend the Charter. This alleged lowering of the bar is problematic, because it increases the likelihood that laws may be passed that contravene the Charter rights and protections afforded all Canadians. Such an approach shifts the responsibility for ensuring Charter compliance from the Crown to individual citizens. In turn, this could be seen as effectively devaluing the Charter as an instrument designed to rein in the Crown against any inclination to trample on the rights of its citizens.

[Bosco]

Re: Justice Lawyer Sues Government of Canada

CBC audio interview from last month

http://www.cbc.ca/asithappens/features/2013/01/17/justice-department-whistleblower/

[dekker]

Re: Justice Lawyer Sues Government of Canada

meets Canadian Charter requirement with 5% content?

always read the label



J21. Regarding vignettes on juice labels, do the pictures have to be proportional to the fruits in the juice? Does any fruit that is present at a level of less than 2 percent by volume have to be depicted in the vignette?

Answer: FDA has not established specific requirements for vignettes on labels of juice beverages. FDA urges manufacturers to use vignettes that accurately depict each fruit or vegetable contained in the multiple juice products. However, a vignette depicting only some of the fruits or vegetables may not be considered misleading, if the name of the food adequately and appropriately describes the contribution of the pictured juice. For example, a 100 percent juice consisting of apple, grape and raspberry juices, in which raspberry juice provides the characterizing flavor, and bears a vignette that only depicts raspberries, would not necessarily be misleading if the identity statement were “raspberry juice blended with apple and grape juices.” Alternatively, the statement of identity may be “raspberry flavored fruit juice blend” or “raspberry juice in a blend of two other juices, 3 to 8 percent raspberry juice” (58 FR 2897 at 2921).
J21. Regarding vignettes on juice labels, do the pictures have to be proportional to the fruits in the juice? Does any fruit that is present at a level of less than 2 percent by volume have to be depicted in the vignette?

compare this to

3. Mr. Schmidt claims that since 1993 Justice has not be conducting the reviews in a manner consistent with s. 4.1, nor has the House of Commons been advised on potential inconsistencies as required. Why does he feel this way? Because, according to him, Justice is operating on the basis that notwithstanding that a law may have a 95% probability of contravening the Charter that’s nothing to worry about, if the law has a 5% chance of being found not inconsistent with the Charter. In order words, a prospective law that more likely than not is inconsistent with the Charter will not raise a red flag so long as there is a 5% chance that it might not offend the Charter. This alleged lowering of the bar is problematic, because it increases the likelihood that laws may be passed that contravene the Charter rights and protections afforded all Canadians. Such an approach shifts the responsibility for ensuring Charter compliance from the Crown to individual citizens. In turn, this could be seen as effectively devaluing the Charter as an instrument designed to rein in the Crown against any inclination to trample on the rights of its citizens.

[mpare]

Re: Justice Lawyer Sues Government of Canada

The suspended Department of Justice lawyer and whistleblower is not alone in his belief that what the Department is doing, if proven, is legally indefensible.

http://www.theglobeandmail.com/news/national/justice-department-whistleblower-on-a-crusade-to-sustain-the-rule-of-law/article9001991/

[Fredk]

Re: Justice Lawyer Sues Government of Canada

This is probably one of the most important legal cases in recent history and it is, for the most part, on the back pages of the news...

We get the government we deserve...

[Bellyhungry]

Re: Justice Lawyer Sues Government of Canada

This is probably one of the most important legal cases in recent history and it is, for the most part, on the back pages of the news...

We get the government we deserve...

I would add 'collectively' to your last sentence.

[mpare]

Re: Justice Lawyer Sues Government of Canada

And that's why I began this thread, but there appears to be little interest in the matter.

This is probably one of the most important legal cases in recent history and it is, for the most part, on the back pages of the news...

We get the government we deserve...

[Bellyhungry]

Re: Justice Lawyer Sues Government of Canada

And that's why I began this thread, but there appears to be little interest in the matter.

I think that is because many of us don't know what the downstream implications are.

[mpare]

Re: Justice Lawyer Sues Government of Canada

One immediate implication is that it is much more likely that laws can be enacted that will compromise your Charter rights, because those laws will not have been flagged as problematic. As a result, those laws may infringe your rights unless and until an individual decides to attack their legitimacy. Even then, it may take years before that law is reined in by a final court ruling.

I think that is because many of us don't know what the downstream implications are.