These two stories are related and clearly demonstrate that Canada's Charter of Rights and Freedoms is under deliberate attack by the government. (Emphasis mine)

Federal lawyer suspended after suing his own department

Published on Wednesday January 16, 2013

Andrew Livingstone
Staff Reporter

A federal lawyer is challenging his own department in court over internal policy that he says allows the government to cut corners, leaving open the possibility that legislation is enacted that infringes Canadians’ Charter rights.

Edgar Schmidt, a senior lawyer with the Department of Justice for more than a decade, believes the government is failing to apply the proper litmus test to laws and regulations before enacting them.

Without proper quality control, it’s possible there are laws and regulations in place that infringe on citizen rights under the Charter of Rights and Freedoms and the Bill of Rights, he says.

“It troubled me for a long time and I raised the issue internally and eventually decided it was something that didn’t conform to law,” Schmidt said.

Schmidt, who was in court this week, filed his claim on Dec. 14. The following day he was suspended from his job without pay for violating his duties as a public servant.

None of Schmidt’s allegations have been proven in court. The department did not respond to a request for comment.

The statement of claim outlines an internal government policy that if an argument can be made for legislation — even if it’s 95 per cent likely to be found inconsistent with the Charter, Bill of Rights of departmental act — no advice be given to the minister that would say the legislation contravenes the law.

By law, a minister is required to advise the House of Commons if new legislation could infringe on the Charter or Bill of Rights.

Recent court decisions give Schmidt’s case added relevance.

This week a B.C. judge struck down a section of the immigration act that he ruled infringes on Charter rights because it is “unnecessarily broad.” Other judges have rejected the Conservative government’s mandatory minimum sentences for gun violations, saying they contravene the Charter.

Falling short of calling himself a whistleblower, Schmidt said his duty as a public servant and a lawyer isn’t just to his bosses, but to all Canadians.

“Sometimes I think we bequeath our Majesty with the executive of the state, but she represents the state as a whole,” he said. “Our duty is not only to do what our managers want us to do.”

Instead of making sure potential laws and regulations don’t infringe on rights, Schmidt said the department is instead asking if there is an argument to be made that they don’t.

This approach, which he said has been happening since 1993, is a shortcut that puts the onus on Canadians to argue Charter infringements, rather than the government doing its due diligence, he said.

http://www.thestar.com/news/canada/article/1316062--federal-lawyer-suspended-after-suing-his-own-department

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Government lawyer Edgar Schmidt courageously blows the whistle: Editorial

Published on Saturday January 19, 2013

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 Noël. “The day after the filing of this statement [by Mr. Schmidt], bang: ‘You’re suspended,’ ” said Noël. “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.

http://www.thestar.com/opinion/editorials/article/1317421--government-lawyer-edgar-schmidt-courageously-blows-the-whistle-editorial