Last Month, Edgar Schmidt, member of the federal Justice Department since 1998, accused his department of short-circuiting a legal requirement that new laws be vetted to see whether they comply with the Canadian Charter of Rights and Freedoms. He has brought this challenge to court, and although his pay has been suspended, this week brought him a major victory, as the department backed off its strategy of asking the judge to throw the case out of court.
Parliament is supposed to be informed when a proposed law is likely to be found inconsistent with the Charter. However, Schmidt alleges that federal lawyers were consistently instructed not to red-flag a law as long as there was some credible argument to save it from being declared unconstitutional. In other words, a provision would have to be fragrantly unconstitutional for it to be red-flagged. Schmidt claims that laws that have as little as a 5% chance of being upheld in courts have passed vetting, which professor Jennifer Bond, a constitutional expert at the University of Ottawa, says amounts to an abuse of the democratic process.
The implications of having many potentially unconstitutional laws passed are enormous. Constitutional challenges by individuals or groups can cost hundreds of thousands of dollars should they go to the Supreme Court of Canada. Striking down a law through challenges in court is also a slow process, which means the number of people affected by the unconstitutional laws consistently climb, even while cases are argued in courts.
Schmidt has expressed concern about the costs of his court challenge, as his salary has been suspended. He has asked the courts for interim legal funding.
For the full article from The Globe and Mail: