A senior Department of Justice lawyer has been suspended from his job without pay after bringing a case before the Federal Court alleging that his department is not properly screening proposed legislation for compliance with the Charter of Rights and Freedoms and other legislation.
Edgar Schmidt filed the court challenge on Dec. 14, the Toronto Star reported, and the Department of Justice suspended him the next day for violating his duties as a public servant.
The Globe and Mail reported today that Federal Court judge Simon Noël had heard from both sides on January 15 and that Judge Noël had been quite vocal in his criticisms of the Justice department. The Justice department has still to present its side of the case. The Globe reported that “a spokesperson for the department, said in an email that it is confident that its legal reporting obligations are being met.”
According to the Star, Schmidt’s 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 or departmental act — no advice be given to the minister that would say the legislation contravenes the law.
Canadian Journalists for Free Expression said today it is watching the case with great interest. Schmidt considers himself to be a whistleblower, while it appears his employer believes that he has overstepped his duties and has suspended him without pay. As CJFE Board member Phil Tunley said in CJFE’s 2011 report on whistleblowing legislation, “Canada is a notoriously tough place for whistleblowers.”
“In case after case, we are seeing public officials who dare to speak out met with quick and heavy-handed retribution at the hands of the Canadian government,” said media lawyer and CJFE Board member Peter Jacobsen. “These people are clearly working in the public interest but the system is failing them.”
The Supreme Court of Canada has recognized the “whistleblower” defence in public sector staff grievances since 1985. In 2010, the Supreme Court took another big step forward when it stated “It is in the context of the public right to knowledge about matters of public interest that the legal position of the confidential source or whistleblower must be located.”
CJFE believes that although the Supreme Court of Canada may be making incremental improvements to laws protecting whistleblowers, the reality on the ground for whistleblowers like Joanna Gualtieri and 2011 CJFE Integrity winners Dr. Shiv Chopra, Dr. Margaret Haydon and Dr. Gerard Lambert can be very grim.
Legal experts are expecting key pieces of the government’s current legislative agenda, such as mandatory minimum sentences and reforms to Canada’s immigration and refugee laws, to face Charter-related legal challenges, the Globe reported. This week a B.C. Supreme Court judge struck down sections of a law targeting human smugglers, calling them unnecessarily broad.