Media Release: Rights watchdog reacts to Federal Court’s decision on Charter review

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For immediate release

Vancouver – Coast Salish Territories (March 2, 2016) – The BC Civil Liberties Association reacted today to the Federal Court’s ruling in Schmidt v Attorney General of Canada. The case was brought by whistleblower and former Department of Justice lawyer Edgar Schmidt, who argued that the government was in breach of its legal duty to ensure proposed laws comply the Charter.

The government argued that it only had a duty to report to Parliament on possible inconsistencies with the Charter when there was no credible argument that could be made in support of the proposed legislation. Mr. Schmidt, whose job it was to examine proposed laws for their Charter compliance, was told that even if the law had only a five percent chance of surviving a constitutional challenge in the courts, it was credible and therefore consistent, and no report to Parliament was necessary. This standard, he argued, permits fundamental breaches of the rule of law and needs to be declared unlawful.

“While the Court did not find that the standard being applied by the government is contrary to law, this decision is no ringing endorsement of the government’s approach” noted Laura Track, a lawyer with the BC Civil Liberties Association. “The judge found that the standard is ‘weak’ and does not provide any guarantee that proposed legislation is Charter compliant. It will be up to Parliament to fix what the judge clearly acknowledged is an inadequate approach to the protection of fundamental rights.”

Last week, the House of Commons Committee on Justice and Human Rights agreed to conduct a study on this very issue. “We are pleased that MPs have committed to review the government’s approach to ensuring proposed laws are consistent with the Charter,” said Track. “The government is not providing adequate advice to Parliament on whether proposed laws are constitutional. This is a matter of government accountability to both Parliament, and to the Charter of Rights.”

“The number of laws struck down for violating the Charter over the last 10 years strongly suggests that a different approach is necessary,” said Track. “Relying on individuals and organizations to challenge the constitutionality of laws after the fact, when the laws are already on the books and much damage has already been done, is unfair and costly, not just to the plaintiffs, but to the public at large. We expect government to get Charter rights right the first time, without the necessity of protracted legal battles in the courts.”

Read BCCLA lawyer Laura Track’s blog post “Getting Charter rights right” here