Federal Court of Appeal: BCCLA Intervenes for Meaningful Charter Rights Review in Lawmaking

For immediate release

OTTAWA – Tomorrow, February 8, 2017, the Federal Court of Appeal will hear oral arguments in Schmidt v Attorney General of Canada. The case is brought by former Justice Department lawyer Edgar Schmidt, who alleges the federal government is failing to properly review the legality and human rights effects of the laws it creates. The British Columbia Civil Liberties Association (BCCLA) is intervening to argue for a standard of legal review that meaningfully protects Canadians’ rights and freedoms.

Section 4.1 of the Department of Justice Act requires that all federal government bills be reviewed to ensure that the proposed law complies with the Charter of Rights and Freedoms. The Minister of Justice considers whether there is a “credible argument” that the new law is consistent with the Charter. If there is no “credible argument”, the Minister of Justice reports the problem to Parliament. This Schmidt case considers whether the “credible argument” standard is adequate. The BCCLA says that the standard is entirely inadequate.

In practice, the “credible argument“ standard means that the Justice Department will not issue a report to Parliament on laws that may be defensible, even when the likelihood of a successful defense is very low. Daniel Sheppard, counsel for the BCCLA in this case, describes the problem with the “credible argument” standard: “Our Charter is always open to new interpretations, so there will always be arguments that could be made to defend new laws. The practical outcome of the government’s “credible argument” standard is that all laws are deemed defensible.”

The BCCLA argues that the legal reviews for Charter compliance must impose a higher standard than the “credible argument” standard. A higher standard is necessary in order for the reviews to serve any function. Without a higher standard, the review mechanism is attractive on paper, but meaningless in practice. The “credible argument” standard is so low that it is incapable of alerting law makers to constitutional problems before a new law is passed.

Caily DiPuma, Acting Litigation Director for the BCCLA, added: “The rule of law dictates a meaningful review process. If the constitutionality of new laws are not appropriately reviewed before they are passed, individual citizens and rights groups are left to challenge them after the fact in the courts. These legal challenges may do little to repair the harm already caused by unconstitutional laws, and come with significant financial burdens both for plaintiffs and society as a whole. Surely it is in everyone’s interest that the government be fully aware of constitutional problems during their legislative deliberations.”

The BCCLA is represented by Daniel Sheppard of Goldblatt Partners.

Read the BCCLA’s submission to the Court here.

What:   Federal Court of Appeal will hear oral arguments in Schmidt v Attorney General of Canada.

When: Oral arguments before the Court begin Wednesday, February 8, 2017 at 6:30 am PT/9:30 am ET.

Where: Federal Court of Appeal (Ottawa, Ontario)

Who: Representatives from the BCCLA are available for comment.