Editorial: Trouble brewing at Justice Canada

In a sign of potential discord at the federal Justice Department, a government lawyer has gone to court over his employer’s duty to inform Parliament of legislation that may violate the Charter of Rights and Freedoms.

According to The Globe and Mail, the lawyer, Edgar Schmidt, is challenging the government over the interpretation of that duty. He argues the test for informing Parliament is “whether, on balance, a measure is likely not in compliance,” the Globe reported last week. But according to Schmidt, the practice has been to approve measures with a five-per-cent chance of success.

Following his Federal Court action, the department suspended Schmidt without pay, the Globe reported.

It seems odd for a lawyer to go out on a limb like that, especially given the financial and professional consequences of taking an employer as powerful as the federal government to court. The current federal government, of course, doesn’t have a reputation as being kind to whistleblowers.

The case, then, looks like an instance of a federal lawyer having had enough of an intractable government. After years of watching the government take legal positions that go against prevailing legal logic and court judgments themselves — the Omar Khadr case comes to mind — is this a sign that federal lawyers are fed up?

According to the Globe story, Schmidt brought his concerns to his superiors last year. So he obviously tried to deal with the matter internally before taking the drastic step of going to court. Schmidt, 60, must feel he has little to lose.

While the case raises questions about lawyers’ duties to their clients and employees’ obligations to their employers, Schmidt’s whistleblowing court action is welcome. The department should, of course, be informing the public and Parliament about potential Charter violations in its laws and regulations. And a five-per-cent likelihood of success, if that’s the practice, seems too low of a threshold for informing Parliament, especially given the concerns raised about a host of federal government laws introduced in recent years.

So we should be grateful for Schmidt’s intervention. In the meantime, the case is a sign of discord at Justice Canada. Perhaps the department should work harder at listening to its employees rather than continuing to push the prevailing government orthodoxy of dismissing those who challenge it.

Glenn Kauth

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