Schmidt Case Shows Higher Rights Protection Standards Needed in Lawmaking

March 2, 2016

CCLA is disappointed with today’s decision from the Federal Court of Canada in the case of Schmidt v. Attorney General of Canada. The ruling affirmed that the Minister of Justice only has to report to Parliament regarding inconsistencies between a proposed bill and the Charter of Rights and Freedoms when there is no credible argument in favour of the bill passing the Charter test. As we have argued, this standard is simply far too low, as no such report has ever been made to Parliament. 

However, we recognize that the Court was limited in the evidence before it. It was looking only at the laws that lay out the Minister’s obligation and, because of solicitor-client privilege, could not look at how the standard has been applied — even though we know that laws with very questionable constitutional status were introduced and passed in recent years. 

While the Court’s decision does not require the Minister of Justice to change the way she interprets her obligation to report Charter inconsistencies to Parliament, there are statements in the decision that recognize the difficulties with the existing standard. In particular, the Court states: “There is no doubt the reporting mechanism is weak, but I cannot read into it more than the legislation provides for.”

The Court’s decision highlights the need for reform if we want parliamentarians to be able to truly and meaningfully assess the constitutional implications of the laws they are passing, and if we want Parliament to be able to hold the government accountable for the laws it introduces. As the Court noted: “Legislative change is needed if we deem it necessary to reform the current system…If there is political will to alter the balance Canada has opted to strike, it is for the proper political and legislative processes to achieve.”  

This is why CCLA has launched the #CharterFirst campaign. As part of the campaign, CCLA is exploring options and consulting with experts to develop recommendations for the Minister of Justice. The goal is to ensure that Parliament, and Canadians, regularly receive information on the degree to which proposed bills comply with the Charter and that the government is held accountable on Charter issues. Hundreds of Canadians have already pledged their support to the campaign, and you can join us as well! 

The case was brought forward by Edgar Schmidt, a former Justice Department lawyer, who claims that serious concerns around Charter compliance were consistently ignored by his former superiors, including the Minister of Justice. CCLA intervened in the case to argue that the government has a responsibility to ensure that proposed laws comply with the Charter and that the Minister has an obligation to report serious concerns about constitutionality to Parliament and, in turn, to Canadians. 

>> Join CCLA’s Charter First campaign

>> Federal Court judgment in Schmidt v. Attorney General of Canada

>> Read CCLA’s factum submitted on this case