Canadians for Accountability files complaint with Canadian Bar Association against Justice Canada

Canadians for Accountability has filed a complaint with the Canadian Bar Association, arguing that the federal government is requiring its lawyers to violate their moral and ethical obligations and requesting that it conduct an investigation into this matter.

The complaint arises from the suspension of Justice Canada lawyer Edgar Schmidt, who argued that the department was failing to provide Parliament with a full and proper assessment when proposed laws might breach the Canadian Charter of Rights and Freedoms. He alleges that internal departmental guidance stipulates that such warnings do not need to be given if there is even a 5% chance that it would survive a legal challenge.

“The Minister of Justice has a duty to report to the House of Commons’ said Allan Cutler, President of Canadians for Accountability. “If they are prevented from doing so, we’re in danger of losing fundamental rights to overreaching legislation. The ordinary citizen doesn’t have the resources to launch a Charter challenge against the government – which has infinite resources.”

Schmidt has brought his case before Justice Simon Noël of the Federal Court. Justice Noël, while he has not yet ruled on the case, blasted Justice Canada for its heavy-handed response to Schmidt’s whistleblowing.

Canadians for Accountability is a non-profit group with the mandate to assist whistleblowers and dissenters in all walks of life in Canada, promote greater accountability in Canadian institutions, and to educate the Canadian public on issues of accountability, whistleblowing and dissent.

The text of the complaint follows:

Robert C. Brun, Q.C
The Canadian Bar Association
500 – 865 Carling Avenue
Ottawa, Ontario    K1S 5S8

Dear Mr. Brun

National legal and juridical institutions as well as Law societies in Canada have the mandate, if not the authority, to deal with issues “relating to the service, ethics and honesty of lawyers… and the administration of justice”. As members of the public and a group concerned with government accountability and ethics, we are writing to register a complaint regarding an allegedly serious conflict of interest situation that Justice Canada lawyers may encounter.

Based on the news report published in the Globe and Mail, “the Minister of Justice has a duty to report to the House of Commons if [any] proposed legislation or regulations are inconsistent with the Charter”.  That task is normally executed by lawyers at the employ of the Department of Justice Canada (DOJ). Mr. Justice Simon Noël, Federal Court of Canada, recently heard a case initiated by DOJ lawyer, Edgar Schmidt, a member in good standing of the Law Society of Manitoba, concerning his inability – presumably because of inhibiting instructions from his immediate superiors – to properly identify legislation with provision that might violate the Charter of Rights and Freedoms.

Leaving aside the legal implications which are still before the court, there are important moral and ethical considerations at play which pertains to the perception of the Canadian public pertaining to the administration of justice and the formulation of statute law which is the exclusive domain of jurists who, in the case at hand

We are requesting you to investigate what may be most serious anomaly which forces lawyers employed by the Department of Justice to neglect their duty towards both Canadians and Parliament in the execution of their professional duties.

Yours sincerely,

Allan S. Cutler