The Edgar Schmidt ruling: "The Minister of Justice is not Atlas"

By Justin Ling Web Only

The Edgar Schmidt ruling:

Edgar Schmidt; Photo by Mike Pinder

Having raised an interesting legal question – must government inform Parliament when it crafts legislation at risk of being declared unconstitutional? – Edgar Schmidt finally got his answer: It doesn’t.

That’s the gist of a Federal Court decision that dismissed the argument made by Schmidt, who used to work for the Justice Department, that the government sometimes introduces legislation to Parliament it knows is likely not consistent with the Canadian Charter of Rights and Freedoms, and that it ought to be informing MPs when it does.

Schmidt, through his counsel — David Yazbeck, of Raven, Cameron, Ballantyne and Yazbeck — has said he's undecided on an appeal.

The simple issue at the heart of the case opens the door to a myriad of complex questions. It openly asks about the relevance of the Canadian Bill of Rights, which according to Schmidt prohibited the government from introducing legislation it knows to be unconstitutional, and questions the substantive distinction between the jobs of the Attorney General and Minister of Justice (or lack thereof). It also raises issues around the fealty of the public service, probes the role of Parliament, and touches on cabinet secrecy.

CBA National has previously covered Schmidt’s whistleblowing, his criticism of the legal analysis that goes on inside cabinet and the department, and his actual court hearings.

In his reasons, Justice Simon Noël doesn’t ignore the Minister’s responsibility altogether.

“Tabling the draft bill triggers the Minister of Justice’s personal duty to report to Parliament. The duty to report, as per the examination provisions, calls for the Minister of Justice herself to ascertain whether a tabled bill is inconsistent with guaranteed rights,” Noël writes.

Both sides, essentially, agree on that. Where the disagreement lies is what constitutes “inconsistent.”

The statutes come from s.3 of the Canadian Bill of Rights, which maintains that the Minister ought to study every bill and regulation to ascertain whether any provisions are inconsistent with the Charter and “report any such inconsistency to the House of Commons at the first convenient opportunity.”

Schmidt contended that “inconsistency,” here, means that the minister needs to consider the balance of probabilities — that is, as he puts it, the Minister must inform Parliament of possible Charter violations should the bill “more likely than not” be inconsistent.

The Crown disagreed. It took a plain reading of the Canadian Bill of Rights, concluding that if there is no credible argument to be made that the bill is consistent with the Charter then, and only then, must they report.

The Statutory Instruments Act further tasks the Clerk of the Privy Council and the Deputy Minister of Justice to alert the inner workings of the bureaucracy, should they find Charter inconsistencies in proposed regulations or laws.

If neither of those processes is triggered, Parliament will simply treat the bill — including any possible Charter inconsistencies — like any other. Any assessment of its possible deficiencies in the legislative process will come from committee witnesses, Members of Parliament, or — in some cases — legislative summaries from the Library of Parliament.

Schmidt contended that, to push legislation with grave constitutional flaws through that process, along with the other bills that are Charter-compliant, amounts to acting in bad faith.

“The Plaintiff argues the ‘credible argument’ standard is not consistent with the context of a democratic constitutional state,” Noël writes.

Noël summarizes the Attorney General’s defence as arguing that the rule of law is not the only constitutional principle at play. “Rather, the Defendant proposes the rule of law is in fact nuanced by other constitutional principles, namely democracy and separation of powers.”

Interestingly, on cross examination in the case, the Deputy Minister of Justice, William Pentney, admitted that the legal examination process has not, to date, ever analyzed amendments made in Parliament — meaning the minister has not benefited from the full analysis on the constitutionality of legislation after it was amended.

“Such a situation has never arisen, but Deputy Minister Pentney indicated there have been instances that came close,” Noël writes.

The Defence had further argued that the Minister of Justice’s job is to cabinet and not, ultimately, to Parliament.

Indeed, Noël writes, “the Minister of Justice is not Atlas, carrying the world of guaranteed rights on her shoulders.”

Part of the tension between this reporting requirement and the job of Justice Minister may, in fact, come from the two hats she must wear.

“In New Zealand, the reporting duty is upheld by the Attorney-General,” Noël writes, adding that in that country, the Attorney General’s reporting requirement is often a matter of “personal judgment”

Noël cites University of Auckland law professor Janet Mclean in noting that it is seen as “inappropriate for the New Zealand Attorney-General to also hold the office of Minister of Justice.” In the United Kingdom, it is the minister responsible for the bill that is obligated to assess its constitutionality.

Still, responsibility in Canada is vested with, as the Canadian Bill of Rights sets out, the role of Minister of Justice.

Ultimately, over some 135 pages of reasoning, Noël determined that the Minister of Justice may operate on the ‘credible argument’ standard and decline to report to Parliament, even in the most extreme cases where the law may have a 99 percent likelihood of being overturned by the courts for violating the Charter.

“The plain meaning and the legislator’s intent do not ask the Minister to guarantee consistency looking forward (for example to anticipate a far-away court challenge), nor do they ask the Minister to guarantee that proposed legislation is more likely than not consistent with guaranteed rights,” Noël writes. “The obligation is to make a thorough search for inconsistencies and to report only if no credible argument can justify the inconsistency...if there is a credible argument to be made in favour of consistency, there is no inconsistency, hence the duty to report is not triggered.

The case became such a focal point for dissatisfaction with the government's legal vetting of its laws thanks in no small part to the previous Conservative government, who heavily favoured the ‘credible argument’ process, at least according to Schmidt’s testimony.

But while Schmidt’s case may ultimately not force the government to adhere to this higher standard, it has certainly started the conversation about how the executive can be more respectful of the Charter.

And the new government may step up to the plate.

Former Liberal MP, and erstwhile Minister of Justice, Irwin Cotler introduced private member’s legislation to lower the “credible standard” threshold in 2013, tasking with the Law Clerk and Parliamentary Counsel of the House of Commons to vet bills on the “likely to be inconsistent” level and report should it not meet that test. That bill, obviously, died in Parliament.

But the new Trudeau administration has signaled that it would consider some form of change.

Public Safety Minister Ralph Goodale was asked about his government’s obligation to pass constitutional legislation early in his mandate.

“The previous government was challenged many times in court on their legislation not being compliant with the Charter, and they lost a great many of those challenges. And we’ll be looking to our new dynamic, exciting Minister of Justice and Attorney General to make sure that Liberal standards vis-à-vis the Charter are much higher than our predecessors’,” Goodale told reporters.

It is not an impossible task, and there is a solution that could still preserve the Minister of Justice’s loyalty to cabinet, without forcing the bureaucracy to snitch on their government.

Carissima Mathen, a professor of constitutional law at the University of Ottawa, says Schmidt’s ultimately loss didn’t come as a shock.

“I’m not surprised,” she told CBA National. “I think it was a challenging argument to make” as arguing to a federal court that the government is acting in bad faith is a “tough sell.”

Looking at the last decade where this issue was thrown into sharp relief, Mathen says it would be difficult to increase the threshold to what Schmidt was arguing.

“Given the role the Attorney General plays in cabinet, it’s perhaps unrealistic for them to take a role publicly that would be different than that taken by the government as a hole,” she said. For all we know, she went on, the Auditor General has been fighting to make legislation Charter compliant, but simply not disclosing those discussions to Parliament.

And the legal analysts in the Department of Justice — “whose primary function and institutional loyalty is to the executive” — can’t necessarily be counted on either, Mathen argues. Forcing them to become watchdogs on their own government would almost certainly decrease open discussion and legitimate analysis, she says.

Maybe that’s all for the best, she says. After all, “so much of Charter analysis doesn’t give itself to a bright-line answer,” she says, adding that creating an official report — perhaps with “absolutely artificial” statistical models of the probability of a bill being struck down, as Schmidt had used — may “just not be useful,” given the litany of variables that can change depending on who is writing the report and who is assessing the evidence and jurisprudence.

But Mathen still says the core idea — that assessing on the constitutionality of proposed legislation and sharing that assessment with parliamentarians— is a very good one.

To that end, she has a novel idea: create an independent office of legal analysis.

Akin to what the Parliamentary Budget Officer, the Privacy Commissioner, and the Auditor General do for their respective fields, a hypothetical constitutional ombudsman would produce independent reports identifying possible Charter deficiencies.

“If I was to go down that road, that would be my intuition,” Mathen says.

“Let’s be very clear: we will be getting an opinion that is limited in its predictive capacity,” she caveats. But, nevertheless, it may accomplish the very thing that Edgar Schmidt has tried so hard, for so long, to do.

And there may just be the undercurrent of activism to get the job done. The Canadian Civil Liberties Association, who intervened in the Schmidt case, have started the #CharterFirst campaign, designed to push the government to “adopt proactive accountability and transparency measures are needed to help compel our government and parliamentarians — both present and future — to honour their fundamental duty to uphold the Charter throughout the law-making process.”

UPDATE: In deciding whether to appeal the Federal Court ruling, Schmidt sent a list of questions to his counsel David Yazbeck, that he's mulling over. 

First on his list, Schmidt is pondering whether the executive has any obligation to consider and act on the likelihood — apart from the absolute certainty — that its legislation may be struck down and, in turn, whether Parliament has any obligation to that end.

"In other words, do citizens have the right to expect ministers, the government and Parliament to act in ways they honestly and reasonably believe is in accordance with the constitution?" he writes.

Schmidt also gets into what he views as deeply confusing syllogisms that arise from the Federal Court's ruling.

"Is it really the ordinary meaning of 'ascertain whether X is true' that you need to be sure when you conclude that X is true but need not be equally sure when you conclude that X is not true?" He writes, noting that the ruling opens the door to requiring the Minister to ensure whether legislation is consistent with the Charter, without requiring that same standard for when she analyzes if it is not consistent — this comes on some very specific interpretations of the word 'ascertain.'"

Schmidt also addresses the question of loyalty — is the Minister of Justice solely beholden to the executive, or do they also owe loyalty to the public? He asks the same of the public service.

His last question could be the most compelling: "Why did all ministers who proposed these examination provisions to Parliament speak of consistency with the Charter or Bill of Rights, and not of the existence of an argument in favour of consistency, if that is really what they intended? They could have said the latter, couldn’t they, if that is what they meant?"

Justin Ling is a regular contributor based in Ottawa and Toronto.

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