Federal lawyer suspended after suing his own department
Andrew Livingstone, Published on Wednesday January 16, 2013
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
