Pat Martin vs. The Justice Minister -

Pat Martin vs. The Justice Minister

The NDP MP alleges a breach of privilege


Ed Schmidt, a lawyer with the Department of Justice, is currently challenging the department in Federal Court—see here and here—over the department’s obligation to inform Parliament if a piece of legislation violates the Charter of Rights and Freedoms.

The NDP’s Pat Martin has now taken this issue to the House, raising it as a matter of privilege.

Mr. Schmidt alleges the Department of Justice counsel have adopted a policy of interpreting the constitutional duty as meaning “no advice is given to the minister that he or she…has a duty to report to the House” so long as “some argument can reasonable be made in favour of its consistency with the charter, even if all the arguments in favour of consistency have a combined likelihood of success of 5% or less”. If these allegations are in fact true, my privilege as a member of Parliament, indeed the privileges of each member of Parliament, have been breached.

Supposedly, when a bill is placed before the House as government bill, every member can be reassured by law that the bill is not in violation of either the Bill of Rights or the Charter of Rights and Freedoms by the fact that the Minister of Justice and Attorney General of Canada has examined the bill and finds it to be compliant with these fundamental Canadian laws. If the allegations of Edgar Schmidt are true, we members cannot rely on the performance of these statutory and constitutional duties to know that a bill is consistent with the Bill of Rights and charter in deciding our vote as the bill proceeds through the committees and the House. Based on these allegations, the Department of Justice is approving proposed legislation that has only a mere remote possibility of being consistent with the charter or the Bill of Rights. In contrast, Schmidt argues that the statutory examination provisions require the Department of Justice to determine whether the proposed legislation is actually consistent with the charter or the Bill of Rights, not on the possibility of whether or not the legislation could be consistent.

This hinders us as members of Parliament in the performance of our parliamentary duties. It constitutes an interference in the performance of our duties to exercise due diligence of the bills before us. I believe every member of the House would agree that if these allegations are proven to be true, they show contempt for the authority and dignity of Parliament.

Liberal MP Irwin Cotler is due to add his concerns and there will no doubt be a response from Justice Minister Rob Nicholson before the Speaker makes a ruling.


Pat Martin vs. The Justice Minister

  1. Pat is now back to his usual gum flapping. He must have done enough busking and tin cup passing to all and sundry suckers to pay for his legal mess.

    • Its such hard work to actually read the post and offer an insightful, well thought-out argument on the substance of the matter.

    • What? This is actually one of the only useful things to come off Pat Martin’s desk of late. Don’t you think the Justice Department should be doing their job and reporting to Parliamentary committees when proposed legislation could contravene the Charter?

  2. It’s Ed Schmidt, fyi.

    • Whoops. Fixed.

  3. One of the baffling things about the CPC is how obstinate they are when promoting ridiculous policies from which they gain so little. Why go the wall in favour of NOT having the dept. tell you when you’re in danger of violating the law?

    • Because having their total incompetence repeatedly thrown in their face is hurtful. This way, when it goes through the courts, they can blame the liberal judges rather than their own god-given abilities.

  4. Cheney would be proud.

  5. Isn’t this a bit of a fiscal responsibility issue too? If the Justice Department knows that a proposed statute is almost certainly unconstitutional, why waste time passing it if all the government is going to end up doing is wasting MORE time (and money) defending it in the Courts, only to have it overturned in the end?

    Parliament wastes enough time as it is, don’t they? Why waste more time doing things that are just going to be moot in the end anyway???

    • Hardly moot and more of a loss leader than wasted time if CPC supporters send more money to help them in their battle with the judges.

      • True. I meant moot in a “useless waste of time for the nation”, but you’re right, it’s arguably still a useful allocation of time vis a vis Tory fundraising.

        Presumably, one day the Tories will no longer be able to raise money on fighting the Supreme Court given the fact that the majority of the justices were appointed by Stephen Harper, but so far that doesn’t seem to be slowing them down. Then again, they’re still using the “the opposition is obstructing our legislation” argument to rally the faithful despite the fact that the Tories have a majority in both houses, and the opposition couldn’t keep them from passing legislation if they wanted to.

        It all just goes to show, a fundraising argument doesn’t need to be true, it just needs to be plausible enough to fool someone who isn’t paying attention.

  6. Think after his lawsuit Motormouth would learn to shut up

  7. If Dief were around today, he would be on the opposition side, railing furiously at the latter-day so-called “Conservatives” who so cavalierly ignore the obligations placed on the government by his Bill of Rights.