By Christopher Pearson

Edgar Schmidt, a former special advisor and general counsel to the Department of Justice, will appear in Federal Court in Ottawa this morning to present his claim against the government demanding that the Minister and Deputy Minister of Justice adequately vet new bills for their consistency with the Canadian Charter of Rights and Freedoms.

Schmidt is claiming that the current vetting process is insufficient and “suggests that the normal vetting process has been overturned, and replaced by another.”

On December 14th, 2012 , Schmidt was suspended without pay after filing his claim related to section 4.1 of the Department of Justice Act, section 3 of the Canadian Bill of Rights, and section 3 of the Statutory Instruments Act.

These employment related issues have been resolved and as of May 2013, he has since retired from federal public service.

Schmidt asserts that, citing charter provisions, the Minister of Justice is obligated to serve notice if any new bill violated or was inconsistent with the Canadian Charter of Rights and Freedoms. However in practice Mr. Schmidt states that the he and his colleagues were told not to inform the minister even if there was a 95% chance of a bill violating the charter.

The claim that the DOJ ignores this potential risk of violation, which is deemed at the very high to certain risk range by the DOJ, has been agreed upon in 2014 when both parties filed a statement of agreed facts. This gives validity to Schmidt’s claim.

Schmidt commented when interviewed by Lawyers Weekly that the statement of agreed facts “confirms that there really is not a factual disagreement” and that “the facts are that the standard for review/examination is very low. The only question is whether this complies with law.”

Schmidt argues that the government operates under a ‘faint hope’ standard which they veil as a ‘credible argument’ standard and that the government has a duty to introduce charter-compliant legislation – or at least inform the public when legislation does not pass the test.

The government claimed they do not have to do so unless legislation is “manifestly unconstitutional, such that no credible argument exists in support of it.”

As stated earlier, Schmidt haspaid a high price for bringing this case to court after being suspended from work without pay and barred from his office.However the policy to ignore this very high risk of violation was more than he could stomach, which caused him to challenge this policy.

He “accepted early retirement in 2013”, and has since stated that he has received support from a variety of sources.

Schmidt says that he is asking for “a declaration of the law, so that is the only substantive remedy that can emerge from the lawsuit.”

He adds that “I think it would be useful if the court would also comment on certain other issues in order to provide guidance to ministers and public employees—issues such as the relationship between executive officers of the state and the state itself”.

Schmidt’s case is being closely watched by lawyers and politicians alike as it sets an important legal precedent and may explain why Stephen Harper’s Conservatives have a habit of passing legislation that Supreme Court of Canada subsequently strikes down.

The nation’s highest court struck down the mandatory minimums for gun crimes calling it “cruel and unusual punishment” this year and ruled the prostitution bill unconstitutional in 2013.