Federal Court sides with government over bill-vetting

Former government lawyer had claimed the Justice Department is lax on vetting procedure.

OTTAWA – The Federal Court of Canada has rejected a former government lawyer’s claim that the Justice Department is lax when vetting proposed new laws for their ability to withstand Charter challenges.

Lawyer Edgar Schmidt lost his job after he complained that the government standard for judging the constitutionality of proposed laws should be tougher.

Schmidt alleged that government lawyers were being told to warn of possible Charter conflicts only when the violations were unambiguous, so that even if problems were likely, there was no need to red-flag the legislation.

Federal Court Justice Simon Noel disagreed in his formal ruling, saying the government standard is appropriate and lawful.

The suit was filed at a time when the former Harper government found itself frequently rebuked by the Supreme Court over conflicts between its law-and-order legislation and the Charter.

Schmidt argued that when judging if legislation might run afoul of the Constitution, government lawyers should ask if a bill was more likely than not to be a problem.

The government argued that legislation can go ahead if there is a credible argument to be made that it would pass muster in the courts.

Simon agreed that the government position meets the legal requirements.

The law requires the justice minister to tell Parliament if a bill is not consistent with the Charter.

Schmidt said the government used what he called a “faint hope” standard to decide if a law was consistent, rather than a high possibility that it might violate guaranteed rights.

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