The Power of Perspectives

The Canadian Bar Association

Justin Ling

What is ‘credible’? Edgar Schmidt keeps asking

August 19 2016 19 August 2016

One of the most interesting, and least covered, legal fights in Canada isn’t over yet.

Edgar Schmidt v Attorney General of Canada contended that successive governments have failed to respect a constitutional requirement that they pass legislation that they know to be compliant with the Charter and that they report any possible inconsistencies in proposed legislation to Parliament.

Schmidt is the former general counsel in the Legislative Services Branch of the Department of Justice — a position from which he’s been on leave since blowing the whistle on the federal government and launching the current litigation.

National has covered Schmidt’s case since 2013, from the early rounds of his case against the Attorney General, to the first hearings in a Federal Court in Ottawa, and, most recently, the decision by that court to dismiss Schmidt’s claim.

And now Schmidt is appealing that decision. On Monday, he and his lawyer, David Yazbeck, of Raven, Cameron, Ballantyne and Yazbeck, filed their memorandum of fact.

While Schmidt’s case hasn’t changed significantly, the one big difference is the government that Schmidt is fighting.

While the Harper government’s objection to Schmidt’s logic was rooted in the philosophical belief that the legal system should respond to democratically-passed legislation, not interfere with it, the new government has vowed to essentially respect the principles that Schmidt is fighting for.

“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’,” Public Safety Minister Ralph Goodale told reporters in 2015, not long after winning power, though so far that belief hasn’t resulted in any obvious changes in how Justice Canada does business.

Schmidt and the Attorney General disagree on a very crucial point.

Schmidt contends that the Bill of Rights contains within it a requirement for the Attorney General to ensure legislation has not just an argument for constitutionality, but indeed a high likelihood that it will survive a constitutional challenge. Should a bill fall short of that, Schmidt says, the Minister of Justice ought to inform Parliament and provide MPs with the legal analysis backing the bill.

The Attorney General takes quite a different read. According to documents filed with the case, governments dating back at least 15 years have approached the Bill of Rights’ role in the legislative process as a safety valve – a last resort in case a bill stands no, or virtually no, chance of surviving a constitutional challenge. The department operates on the belief that the constitutional weaknesses of a bill shall only be reported to Parliament if there is, as their own guidelines phrase it, “manifest inconsistency between proposed legislation or regulations and the Charter.”

The Federal Court sided with the government.

 “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,” Justice Simon Noël wrote in his decision.

Schmidt’s challenge will ultimately hinge on the question of what is credible.

The Attorney General’s opinion, which Noël backed, is that so long as a single argument in favour of the bill’s constitutionality is credible, the reporting mechanism is not activated. Schmidt and Yazbeck, meanwhile, contend that the whole argument could be credible.

“A truly credible argument is the standard that the Appellant is asking this court to find the law requires: an argument or a group of arguments that are, on balance, worthy of acceptance and belief — that outweigh the arguments on the other side of the question,” read the arguments filed on Monday.

The distinctions are largely semantic — whether an argument must be credible, or could be credible; whether a defence might succeed, or whether it will probably succeed.

Schmidt’s arguments even contain a grammatical table that attempts to break down exactly what linguistic concepts such as “ascertain” and “determine” mean. He leans on the French translations: “déterminer,” “juger,” and “vérifier.”

Yazbeck told National that the judge erred by reading in words that simply weren’t there.

“He added language to effectively change their meaning,” Yazbeck says.

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