CBA refuses to investigate – or even respond to – complaint on Edgar Schmidt case

Summer is over and it’s time to catch up on some older stories. The first I’d like to tackle is that of Edgar Schmidt, the Justice Canada lawyer who took a stand against the passing of laws that didn’t meet the Constitutional smell test. You may recall that he exposed an internal policy which set the bar for passing laws at a 5% chance that it might be deemed unconstitutional  That is, Justice Canada was/is approving laws which could have an up to 95% change of being successfully challenged as being in violation of the Canadian Charter of Rights. He was run out of the department for that and is now defending himself against reprisals, as well as challenging the Justice Canada policy in court.

You can read a summary of Schmidt’s case one his own website, which he is also using to fundraise for his legal challenge, and on news sites to which he provides links.

This is a very important story and court case. Schmidt is tackling a policy which allows bureaucrats and politicians to ignore our Charter rights. Since few people have the resources to challenge laws like this, and since the government invariably chooses to fight rather than admit fault (and has unlimited tax dollars to do so), it means that rights can be gradually curtailed, one law at a time. It’s like the metaphorical frog in the boiling pot of water: at what point do we even notice? The answer, apparently, in only when a whistleblower like Schmidt comes forward. And for that we should be grateful – and generous in our assistance.

For our part, earlier this year Canadians for Accountability wrote a letter to the Canadian Bar Association. We raised the issue of the conflict of interest which Justice Canada lawyers may face when following the policy in question. In June, our President, Allan Cutler, followed up with another letter as the CBA had failed to even respond.

The CBA has not responded to this letter either. This is of some concern, as the legal profession is self-regulating. The track record of law societies across Canada in holding lawyers, judges, firms and governments to account is not a good one. The contempt with which our request has obviously been treated reinforces my opinion that law societies and the CBA do not put the best interests of Canadians first, and that law societies should be replaced with another mechanism not as prone to cronyism and conflict of interest. But that is unlikely to happen.

The text of our more recent letter follows.

June 26, 2013

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

Dear Mr. Brun,

On January 28, 2013, we wrote requesting that you investigate the ethical issue of 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. The legal issue is still before the courts, but we are concerned with the more important moral and ethical considerations.

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, in January we wrote to register a complaint regarding an allegedly serious conflict of interest situation that Justice Canada lawyers may encounter.

Once again, we repeat, “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”.

Based on our own sources, we know that our first letter was received. To date, we have not received a reply – not even an acknowledgement.

Yours sincerely,

Allan S. Cutler