Last week it came to light that Edgar Schmidt, a Canadian Government lawyer, had filed a suit last December against the Attorney General of Canada. The suit alleged that the practices within the Department of Justice are in violation of current legislation that requires the government to thoroughly vet all bills for Charter breaches. The online legal magazine Slaw recently published a brief outline of the relevant pieces of legislation and a link to Schmidt’s full statement of claim.
Section 12 of the statement of claim is particularly interesting.
“12. Since about 1993, with the knowledge and approval of the Deputy Minister, an interpretation of the statutory examination provisions has been adopted in the Department to the effect that what they require is the formation of an opinion as to whether any provision of the legislative text being examined ismanifestIy or certainly inconsistent with the Bill of Rights or the Charter and, in the case of proposed regulations, whether any provision is manifestly orcertainly not authorized by the Act under which the regulation is to be made.”
Schmidt’s statement of claim shows that he is concerned about three pieces of legislation in particular.
s.3 of the Canadian Bill of Rights, SC 1960, c 44:. . . the Minister of Justice shall . . . examine every regulation . . . and every Bill introduced in or presented to the House of Commons by a Minister of the Crown, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of this Part and he shall report any such inconsistency to the House of Commons.
s.3(2), (3) of the Statutory Instruments Act, RSC 1985, c S-22, which require an examination of regulations to ensure they’re not ultra vires and:[do] not trespass unduly on existing rights and freedoms and [are] not, in any case, inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights.
s.3 of the Canadian Charter of Rights and Freedoms Examination Regulations, SOR/85-781 (pursuant to the Department of Justice Act, RSC 1985, c J-2):the Minister shall . . . (a) examine the Bill in order to determine whether any of the provisions thereof are inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms . . .
More to come as this story develops.