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Benjamin Janzen

Schmidt’s Motion Enhances Democracy

My friends, Schmidt’s action is a good thing for democracy.When federal Department of Justice (DOJ) lawyer Edgar Schmidt filed a motion in federal court asking for a judge to declare that the DOJ should be reviewing proposed legislation for Charter and Bill of rights consistency in a more meaningful way, he asked for the court to endorse a process that enhances democratic discourse. Under the law (s.4.1 of the Department of Justice Act; S.3 of the Canadian Bill of Rights; s.3 of the Statutory Instruments Act), the Minister and Deputy Minister of Justice are required to submit a report to Parliament when they find that a proposal might run afoul of the Charter or Bill of Rights. However, Edgar Schmidt (a lawyer in the DOJ’s department of legislative affairs who was suspended without pay for filing this motion), alleges this duty has been carried out by the DOJ in such a way as to preclude reports from getting made almost entirely. According to Schmidt, they’ve been directed to make a report only when a proposal is manifestly unconstitutional (that is to say, only where no reasonable argument exists in support of it should a report be tabled for Parliament’s consideration). This is bad for democracy. Parliament should be made aware of any and all potential concerns to inform its deliberations.The problem as captured in Schmidt’s factum is “as long as some [no matter how remote] argument in favour of Charter compliance can be made to a court and there is some possibility that a court might accept that argument -- even if it is thought to be almost certain that a court would not do so [i.e. 19 out of 20 times it likely wouldn’t pass] --, then no report to the House of Commons about the proposed legislation is considered to be required.” (Schmidt’s Blog)Under both Conservative and Liberal… Read More