The Federal Court of Canada will provide a ruling on Wednesday March 2 regarding the case of Edgar Schmidt, a former Justice Department lawyer who took his employer to court for failing to do it duty. I have posted several pieces on Schmidt’s case and am providing this edited version as a backgrounder to the court’s ruling.
Lawyer Edgar Schmidt blew the whistle on the Canadian government and received harsh treatment for daring to do so. Schmidt was a senior Justice Department lawyer but he landed in Federal Court taking legal action against his former employer.
He says that Canadian law requires the department to screen proposed legislation for compatibility with the Charter of Rights and Freedoms and to inform the minister of justice and parliament regarding that analysis. Schmidt says that the department routinely failed to do so.
Schmidt says that he had, over a period of years, raised concerns about what he considered a flawed practice. He did that through various official channels up to the deputy minister level in both Liberal and Conservative governments.
Schmidt says the consequences of the department’s failure to act appropriately are serious. The state should be ensuring that it makes laws that it believes conform to the Charter and Bill of Rights. Instead it is left to citizens, who usually do not have the resources, to discover and challenge such offending laws.
Barred from his office
Schmidt says that he never received a satisfactory response to his concerns so he took his department to court in December 2012 as a last resort. The next day he was barred from his office, suspended without pay and had contributions to his pension plan halted.
In response, he hired a lawyer and negotiated an agreement in which he agreed to take early retirement in return for having his back pay and pension contributions reinstated. This all happened while his substantive case was proceeding through the Federal Court.
News reports following Schmidt’s first appearance early in 2013 referred to various examples of judges striking down laws that they considered to infringe upon the Charter of Rights. These included sections of a law targeting human smugglers and another regarding the government’s new mandatory minimum sentences for gun violations.
Schmidt said in an interview at the time with CBC Radio’s As It Happens that he does not like the term whistleblower because it sounds shrill. But he believes the duties of a public servant can, in exceptional circumstances, demand more than simply doing what supervisors order.
He joins a growing line of public employees who have seen abuses of process and decided to go public. These individuals include: Joanna Gualtieri; Allan Cutler; Health Canada scientists Dr. Shiv Chopra, Dr. Margaret Hayden, and Dr. Gerard Lambert; Dr. Nancy Olivieri; and Richard Colvin, who was a diplomat in Afghanistan and repeatedly raised concerns about the potential for torture of prisoners handed over by the Canadian military to Afghan police.
Many of these examples occurred during the long reign of the Liberals between 1993 and 2006, but Schmidt was one of a long list of public servants who were harassed, fired or ridiculed under the Conservatives.
Theirs were among more than 100 case studies compiled by a coalition called Voices-Voix, which documents how organizations and individuals have been harassed and bullied by the government. Defending the right of individuals and groups to dissent and participate fully in public debates, Voices-Voix maintains that the government must create democratic space for individuals and civil society organizations to debate and dissent.