Edgar Schmidt v. Attorney General of Canada
(Federal Court) (Civil) (By Leave)
Canadian charter (Non-criminal) - Parliament and legislatures (ss. 4 and 5), Legislation, Interpretation - Charter of Rights — Parliament and legislatures — Legislation — Interpretation — Applicant seeking declaration regarding manner in which Minister of Justice and Clerk of Privy Council assume their examination and reporting duties regarding bills and regulations — Whether Minister of Justice and Clerk of the Privy Council, in consultation with Deputy Minister of Justice, were correctly undertaking their examination and reporting obligations under s. 3 of the Canadian Bill of Rights, S.C. 1960, c. 44; s. 4.1 of the Department of Justice Act, R.S.C. 1985, c. J-2; and ss. 3(2) and 3(3) of the Statutory — Instruments — Act, R.S.C. 1985, c. S-22 when determining whether draft bills and draft regulations violate rights guaranteed by the Bill of Rights and Charter of Rights.
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Mr. Schmidt sought a declaration concerning the meaning of three legislative provisions. Pursuant to s. 3 of the Canadian Bill of Rights and s. 4.1 of the Department of Justice Act, the Minister of Justice (“Minister”) must ascertain whether proposed legislation and regulations are inconsistent with the Bill of Rights and the Charter of Rights. If the Minister ascertains that an inconsistency with guaranteed rights does exist, she must file a report to the House of Commons indicating her conclusion. With respect to most regulations, pursuant to s. 3 of the Statutory — Instruments — Act, the Clerk of the Privy Council, in consultation with the Deputy Minister of Justice, must ascertain whether an inconsistency with guaranteed rights exists. If an inconsistency is found, they will report their conclusion to the regulation — making authority. Mr. Schmidt became concerned about the appropriateness of the standard of scrutiny applied. He initiated a simplified action in Federal Court to seek a declaration as to the proper interpretation of the examination provisions in each of the statutes. Mr. Schmidt submitted that the threshold for making a report had to be when proposed legislation was “more likely than not inconsistent” with the constitutional and quasi-constitutional standards. The Attorney General submitted that a report only had to be made when “no credible argument” could be made that the proposed legislation met those standards. The Federal Court dismissed Mr. Schmidt’s application for a declaration. This decision was upheld on appeal.
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