Law Times

Law Times • March 11, 2013 Page 11 FOCUS Federal legislation under fire BY JUDY VAN RHIJN For Law Times S ince the introduction of the federal government's tough-on-crime legislation, the judiciary has been chipping away at mandatory minimums and dangerous offender declarations in a piecemeal fashion. Now, the revelation by a government whistleblower of his employer's disinterest in any advice on the constitutionality of its laws may call the whole lawmaking process into question. While there has been a great deal of controversy over the constitutionality of various pieces of federal legislation in recent years, the process for drafting and assessing them has largely remained behind closed doors, a situation that puts civil libertarians in the position of having to rely on the government's duty to scrutinize bills under several statutes. Specifically, the Justice Department has a duty to consider whether any statutory provisions are inconsistent with the Canadian Bill of Rights, the Statutory Instruments Act, and the Canadian Charter of Rights and Freedoms. The provisions that have caused the most disquiet in the legal community arise from the federal Conservatives' omnibus crime bill enacted in 2008. A number of those provisions have fallen foul of the judiciary due to constitutional concerns. The Barreau du Québec has decided to contest the constitutionality of mandatory minimum sentences in a motion before the Quebec Superior Court. In Ontario, six cases focusing on the three-year mandatory minimum sentence for possessing a loaded prohibited gun went before a special panel of the Ontario Court of Appeal last month. Ontario's attorney general prosecuted the cases, but the federal government has intervened along with the Canadian Civil Liberties Association, the African Canadian Legal Clinic, and the John Howard Society. The federal government's position is that it's entitled to deference in how it tries to enhance public safety. Parliament, it submitted in the Ontario proceedings, "is entitled to take a sterner view of the seriousness of this offence, based on its appreciation of evolving social conditions and values." There's some support for this from previous Supreme Court rulings that found judges couldn't issue a constitutional exemption to a mandatory minimum if they felt the sentence was too harsh. Instead, they must find such sentences to be unconstitutional on the grounds of cruel and unusual punishment or allow them to stand. Now, the whistleblowing case brought by suspended Department of Justice lawyer Edgar Schmidt may provide more sweeping grounds for a challenge. In his statement of claim, Schmidt contends that the policy of the Justice Department requiring an opinion to be issued only if all arguments in favour of consistency with the Constitution have a combined likelihood of success of five per cent or less doesn't comply with its duty of scrutiny. He has asked the Federal Court avoided if it was never put forward in the first place." He also refers to s. 236 of the Public Service Modernization Act that stripped public servants of their right to sue their bosses. In a classic catch-22 situation, it may end up applying to Schmidt. The provision is colloquially known as the Gualtieri clause because of the widespread belief that the government passed it as a result of her lawsuit. Instead of appealing that decision, the government introduced s. 236 that limited public servants to the grievance process. Gualtieri describes it as "the accused sitting in judgment of the accused." "It's a complete abrogation of legal rights that goes against a whole line of judicial decisions," she says. "It would be interesting to see the paper that justified that." LT We focus on construction law so your clients can focus on construction Joanna Gualtieri persuaded Edgar Schmidt to speak publicly about his case against the federal government. for declarations confirming the illegality of the process and is seeking policy directions. Government lawyers have recently abandoned a motion for dismissal and the matter is proceeding with the provision of further particulars requested by Justice Simon Noël of the Federal Court. Lawyer Joanna Gualtieri, a veteran of her own government whistleblowing case, first heard from Schmidt more than a year ago. "We spoke numerous times," she says. "He obviously had a compelling story. It's truly one of those cases that not only meets the threshold of being in the public interest, it exceeds it in every way." Gualtieri persuaded a reluctant Schmidt to involve the media. "In this case, it is utterly essential that the media fulfil their role as a conduit to the public. This is one of the biggest whistleblowing cases ever to come to light in this country." David Hutton, executive director of FAIR, an organization protecting government whistleblowers, says the implications of the case are just beginning to dawn on the general public. "People are connecting the dots. Potentially 20 years of legislation hasn't been properly screened." Hutton believes the Justice Department has put aside its duty to uphold the law in order to follow the wishes of its political masters. "You can't get more serious than holding up the Charter. Citizens end up caught in cases from which they suffer badly and may go to jail because a law is on the books that shouldn't be, a law that doesn't respect people's rights." Hutton doesn't restrict his concerns to the criminal arena. He contends that the "online snooping bill" is a good one to talk about. "That was a classic example of the cost of not doing the screening properly. Enormous energy was expended over it. The public was agitated. Advocacy organizations leapt into action. All that noise and energy and fuss could have been PETER W. KRYWORUK London Office 519-640-6317 pkryworuk@lerners.ca LIANNE J. ARMSTRONG CAROLYN BRANDOW London Office 519-640-6320 larmstrong@lerners.ca London Office 519-640-6356 cbrandow@lerners.ca In the construction industry, legal disputes can halt or delay a project and consume valuable resources. For the best possible outcome, you can refer clients to us and count on the proven construction litigation team at Lerners for expertise in: construction liens construction deficiencies breach of contract occupational health & safety defence Contact Peter, Lianne or Carolyn and turn our experience to your advantage. London: 519 672 4510 www.lerners.ca Lerners_LT_Mar11_13.indd 1 www.lawtimesnews.com Untitled-6 1 13-03-04 11:55 AM 13-03-04 2:47 PM

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