Judge orders Justice Department to pay whistleblower’s legal fees

Edgar Schmidt gets financial help with one lawsuit but not on the legal efforts to win his job back.

by Dennis Gruending

Edgar Schmidt is a senior lawyer in the federal Department of Justice in Ottawa who launched a highly unusual court case against his employer. Schmidt believes that his department is failing to provide advice to law makers that would protect Canadians against Parliament creating laws and regulations that infringe upon their Charter and civil rights. He is paying a price for his principled stand in blowing the whistle. Schmidt told Global TV in a recent interview that, “The day after I filed the claim [in December 2012], I was called at home and told not to show up at work on Monday and that I was suspended without pay.” The Justice Department also stopped contributions toward his pension.

Schmidt’s case against the Justice Department came before Federal Court judge Simon Noël on January 15, 2013. Judge Noel was aware that the department had suspended Schmidt without pay and he was not amused. “The day after the filing of this statement [by Schmidt], bang: ‘You’re suspended,’ ” Justice Noël was quoted as saying. “The court doesn’t like that … We see that in different countries and we don’t like it… Canada is still a democracy.”

By way of further background on the Charter-related issues of this case: Schmidt is (was) a senior Justice Department lawyer whose duties since 1999 have included drafting and advising on legislation. Before his suspension in December, he was a general counsel and special adviser in the department’s Legislative Services Branch. He has over a period of years voiced his concerns internally that the Justice Department is failing to properly examine proposed legislation for compliance with the Charter of Rights and Freedoms. Schmidt also believes that the department is failing to notify the Minister of Justice and Parliamentarians about such proposed laws that the Department or the Minister consider to be likely inconsistent with the Charter.

Schmidt says that he raised the issue through various official channels, up to the deputy minister level — in both Liberal and Conservative governments. He says that he never received a satisfactory response and that he went to court as a matter of last resort.

News reports following his 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.

After Schmidt’s case came to light, knowledgeable observers described it as important. “He has confirmed what many of us on the outside have been hypothesizing about,” according to Jennifer Bond, a constitutional expert at the University of Ottawa. "It is so shocking that that is what the [Charter] test has become. The review mechanism is obviously not working. If it were we should have at least some reports over the last 30 years.” Professor Bond told The Globe and Mail that Schmidt should be lionized and not penalized for risking his career and his finances on an important point of principle.

There has been one important development in the case. When Schmidt first appeared in court in January 2013, he was representing himself – actually he was representing all of us — but on that day, he stood alone in that defence. The Justice Department was able to draw upon the tax-supported funds to have an experienced and aggressive lawyer to oppose Schmidt in the courtroom.

Judge Noël ordered in a subsequent court appearance that the government cover Schmidt's legal costs in the legal challenge to government's failure to respect the Charter in its lawmaking. This is important because the case could drag on for months or even years. Now Schmidt won’t have to research and argue the case on his own. He has turned to Joseph Arvay, a Vancouver-based lawyer, who is well known for arguing a number of landmark cases involving civil liberties and constitutional rights.

But Judge Noël has no jurisdiction regarding the Justice Department’s decision to suspend Schmidt without pay. Schmidt has hired Andrew Raven, an Ottawa-based lawyer, to represent him on the employment issue. There have been meetings and other communications but so far the department has refused to budge, calling the suspension an “administrative matter” and not one of discipline. They then argue that since Schmidt is not at work, he should not be paid. He replies that he is not at work because they won’t allow him to be there and that the “administrative suspension” has punitive results for him.

David Hutton, executive director of an organization called Federal Accountability Initiative for Reform (FAIR) which seeks to protect whistle blowers, said Schmidt has been treated “shamefully” by the government. “They suspended him without cause, without giving him any reason, without an investigation, without giving him a way of redressing whatever he was doing wrong. It’s par for the course for whistle blowers to be pushed out of the workplace.”

Schmidt remains professionally and financially in limbo with no job and no income. He has hired a lawyer to represent him in an attempt to be reinstated and he has likely spent over $10,000 in legal fees. He has created a website called charterdefence.ca to keep interested people informed about the case. The website also has a link to a legal fund created for Schmidt. It has been registered at arm’s length from him and has an independent administrator. In the interest of transparency, I should mention that I am one of those who helped to register the fund. I am contributing and invite you to do so.

Edgar Schmidt is standing up for all of us but so far he is taking the fall mostly on his own. Let’s help him out in whatever ways we can.

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