CBC "As It Happens": Ed Schmidt on alleged Department of Justice illegality

Edgar Schmidt

CBC Radio – January 16, 2013

Carol Off interviews Edgar Schmidt, a senior Department of Justice lawyer, who alleges that for years the Department was breaking the law by failing to properly screen new legislation for compliance with the Charter.

Having raised his concerns repeatedly to those responsible without success, he went to court to ask for clarification, as a public servant, regarding whether the instructions isssued to him and his colleagues are legal. He was immediately suspended without pay.

David Hutton
Click on the play button to listen to the recording (8 minutes):


Carol Off: Edgar Schmidt is a senior lawyer with the Department of Justice. One of this duties was to review bills that might violate our charter rights. Now he may have to focus a little more attention on one person's rights in particular -- his own. Mr. Schmidt has been suspended without pay.

The suspension hit one day after he filed a case in Federal Court. It alleges that the government is breaking a series of pretty important laws -- the laws requiring the Department of Justice to warn the House of Commons about bills that violate the Charter of Rights. Yesterday the government asked the Court to dismiss Mr. Schmidt's case. We reached Edgar Schmidt in Ottawa.

Carol Off: Mr Schmidt I understand that the judge had some fairly stern words for government lawyers when he found out you had been suspended without pay for bringing this case to court. What did Justice Noel have to say yesterday?

Edgar Schmidt: Well, he had some challenging questions for me, and for the lawyer for the defence, and one of the questions he put to the defence was why they had chosen to deal with the filing of the claim as they had.

Carol Off: If I can quote from what has been printed, he said that “the day after filing of the statement (by Mr. Schmidt), bang, you’re suspended.” And then he went on to say “It’s unbelievable. Your client has done everything it can to kill this thing” (the client being the federal government). “The court doesn’t like that. We see that in different countries that we don’t like. Canada is still a democracy.” What do you take away from that?

Edgar Schmidt: Well I do appreciate the court’s willingness to try to look at the bigger picture of whether I’m being treated fairly, yes I appreciate that.

Carol Off: What has you life been like for you since you were suspended from your job?

Edgar Schmidt: An awful lot of it has actually been preparing for court. Yesterday was the hearing of motions, both motions that I had moved and ones that the defence had moved, and what we had anticipated being maybe two hours of argument turned into an all-day marathon. I’m bushed, I’m wiped today!

Carol Off: You are representing yourself in court, aren’t you?

Edgar Schmidt: I am.

Carol Off: Why did you decide to do that?

Edgar Schmidt: The answer is really quite simple in some ways. I am a public servant, and in this action I’m trying to clarify my own duties or  responsibilities, and I really don’t think that it’s a public servant’s responsibility to look after the enforcement of laws out of his own pocket.

Carol Off: And you would have to pay to hire a lawyer to defend yourself.

Edgar Schmidt: Yes. Why should I pay for a lawyer to defend the interests of my employer?

Carol Off: You believe that you are acting in the public interest. Is that right?

Edgar Schmidt: Absolutely.

Carol Off: Can you explain why you took the steps that you did?

Edgar Schmidt: Well, Parliament has enacted these three provisions that require the Minister of Justice and his deputy minister, in other words the Crown’s legal advisors, to form opinions about the conformity of legislation or proposed legislation with the Charter and the Bill of Rights. And we have not, in the Department, being doing that for some many years. Instead of asking ourselves the question “Is this consistent with the Charter?” we’ve been asking ourselves the question “Is there an argument to be made?”

Carol Off: An argument to be for “how do we justify this in the face of the Charter” and not “are we complying with the Charter” That’s how it’s been skewed, is that what you’re saying?

Edgar Schmidt: Yes. If you think of the classic scales of justice, instead of asking where the scales are tilting to, the question is only “is there anything that we can put on the ‘consistency’ side”

Carol Off: You’ve been observing this for… how many years have you been in the Justice Department?

Edgar Schmidt: I’ve been in the department since 1998 and in the Legislative Services Branch since 1999.

Carol Off: You’ve pointed this out that you feel it is not in the spirit of the Charter?

Edgar Schmidt: I have pointed out many times that it’s not in accordance with, not only the spirit, but the letter, in my view, of the provisions that Parliament enacted.

Carol Off: And when did you realize that you were going to have to take this to court?

Edgar Schmidt: I only made that decision fairly recently, because up till then I continue to hope that I would be able to persuade my superiors in the department that what we were doing was not consistent with the law.

Carol Off: When you raised this with them, when you said that as your understand it the government had a duty to ask itself whether there was a Charter of Rights problem or a Bill of Rights problem with any of its laws and you told them that is the responsibility that the department has, how did they respond to you?

Edgar Schmidt: Essentially they take a different view of these provisions. They take the view that as soon as they have an argument the question is over, the question is solved.

Carol Off: And were you the only one making the case that this was not consistent with the letter or the spirit of the law, of the Bill of Rights or the Charter?

Edgar Schmidt: No. I think that I was undoubtedly the main person bringing this forward. I know that colleagues agreed with the view I was taking.

Carol Off: Would you call yourself a whistleblower?

Edgar Schmidt: I don’t really like the term because it sounds sort of shrill. But am I bringing an issue forward that involves, in my view non-compliance with law by the people to whom I report, yes I am doing that.

Carol Off: Did you realize when you decided that you needed to challenge your own employers in court, that they would be so heavy with you?

Edgar Schmidt: I realized that it was a risk. There’s whole history of response to this kind of dissent, that I was at least aware of, so I knew that it was possible.

Carol Off: You must have had a few sleepless nights.

Edgar Schmidt:  Yes, I’ve had quite a few.

Carol Off: And why did you decide to go ahead, what was it – I mean you probably talked this over with your family and friends – what was it that finally persuaded you that you had to take this step?

Edgar Schmidt: Well, it had been building for a long time, but I visited Egypt in December. I was a resource person for a workshop there that dealt with issues of the process of making law, and I observed at close hand how in some sense – ‘fragile’ isn’t quite the right word, but I can’t think of a better one right now – how fragile democracy is, and how much it needs care and tending. And somehow when I came back, I said “I think I need to do this”.

Carol Off: Mr. Schmidt, we are going to try to learn more about this and why this has happened to you and about your case. I appreciate you speaking with us tonight.

Original interview on CBC As It Happens website