Protecting rights in new laws

Lawyer sues federal government for omitting rights check from new legislation.

by Dennis Gruending

Edgar Schmidt, a senior lawyer in the federal Department of Justice, has taken a courageous and highly unusual step. He has launched a court case against his employer for what he believes is its failure to protect Canadians against Parliament creating laws and regulations that could infringe upon their human rights.

On the day after Schmidt filed his claim with the court in December 2012, the department suspended him without pay and barred him from his office. That harsh action, in turn, did not amuse the Federal Court judge hearing the case. “The court doesn’t like that,” said Mr Justice Simon Noel. “We see that in different countries and we don’t like it… Canada is still a democracy.”

Knowledgeable observers are saying that Schmidt’s case and the department’s harsh reaction toward him speak to the erosion of democracy in Canada. In fact, a group called the Voices-Voix Coalition, has filed a submission with a United Nations working group in which it accuses the government of a whole range of transgressions against democracy. The UN group will hold sessions in April – May 2013.

Schmidt is (was) a senior  lawyer whose duties since 1998 have included drafting and advising on legislation. He was, prior to his suspension in December, a general counsel and special adviser in the department’s Legislative Services Branch.

The basis of Schmidt’s case is as follows: The Justice Department is required by law to “pre-examine” new laws and regulations to ensure that they conform to the Charter and Bill of Rights, which exist to protect the fundamental freedoms and rights of citizens. Schmidt says that, in practice, the department has since at least 1993 had its lawyers apply only a flawed and minimal screening test. It does not identify and report on legislation that the department itself considers almost certainly to be illegal and unconstitutional.

In other words the department rarely, if ever, warns the Justice Minister about a bill that is likely to offend the Charter of Rights. Nor does the minister inform Members of Parliament of such a possibility before they vote on new legislation. In his statement of claim, Schmidt says that the department would not warn the minister even if it found there to be a 95 per cent chance that legislation does not comply with the Charter and Bill of Rights.

Schmidt says that he has over a period of years raised concerns about what he considers the department’s flawed practices. He has done that through various official channels, up to the deputy minister level — in both Liberal and Conservative governments. He says he has never received a satisfactory response and that he has gone to court as a matter of last resort.

Schmidt says the consequences of the department’s failure to act appropriately are serious. The state should be ensuring that it makes laws that it believes conform to the Charter and Bill of Rights. Instead, it is left to citizens, who usually do not have the resources, to discover and challenge such offending laws.

News reports following Schmidt’s court appearance referred to recent examples of judges striking down laws that they considered to infringe upon the Charter of Rights. These included sections of a law targeting human smugglers and another regarding the government’s new mandatory minimum sentences for gun violations.

Schmidt said in an interview with CBC Radio’s As It Happens that he does not like the term whistleblower because it sounds “shrill,” but that he believes the duties of a public servant can, in exceptional circumstances, demand more than simply doing what supervisors order.

He joins a growing line of public servants who have seen abuses of process and decided to go public. These individuals include: Joanna Gualtieri; Allan Cutler; Health Canada scientists Dr. Shiv Chopra, Dr. Margaret Hayden, and Dr. Gerard Lambert; Dr. Nancy Olivieri; and Richard Colvin, who was a diplomat in Afghanistan and repeatedly raised concerns about the potential for torture of prisoners handed over by the Canadian military to Afghan police.

Many of these cases occurred during the long reign of the Liberals between 1993 and 2006, but Schmidt is only the latest in a growing list of public servants who have been harassed, fired or ridiculed under the Conservatives.

On October 7, 2012, the Voices-Voix coalition submitted a report to the 16th Universal Periodic Review Working Group of the Human Rights Council. The group described its growing concern about the current government’s treatment of “human rights defenders, civil society groups and all those who exercise their democratic right to dissent.” The Canadian government, along with other countries, will be reviewed by the United Nations UPR in 2013.

Voices-Voix talks about a wide-ranging variety of actions taken by the government to disempower critics and to stifle dissent. Many of these actions are systemic, for example, the defunding that has targeted development organizations, women’s equality groups, and environmental organizations.

But the Voices-Voix submission also says that many of the government’s harassing actions have been targeted at individuals and are highly personal.

The report singles out the government’s extensive spying upon Cindy Blackstock, executive director of the First Nations Child and Family Caring Society of Canada. In 2007, Blackstock filed a human rights complaint accusing the federal government of willfully underfunding child welfare services to First Nations children on reserves.

The Aboriginal Peoples Television Network later used Access to Information requests to discover that the government sent its employees to listen in on between 75 and 100 meetings at which Blackstock was a participant. They monitored her every word and reported back to their bosses at Indian and Northern Affairs.

Government employees in that department and in the Justice Department also monitored Blackstock’s Facebook page, both during and after working hours. Her Status Indian file was accessed along with its personal information, including data on her family. Blackstock has responded by launching a complaint before the Canadian Human Rights Commission, which is scheduled to be heard in February 2013.

Voices-Voix makes a number of recommendations to the UN working group. In one of them, it calls on the Canadian government to stop vilifying and intimidating human rights defenders and social justice activists in Canada.

Indeed.

© Copyright 2013 Dennis Gruending, All rights Reserved. Written For: StraightGoods.ca