A Department of Justice lawyer, Edgar Schmidt, recently challenged his employer in court, alleging that the process that the Department uses to analyze whether proposed legislation is in accordance with the Charter is against the law. Schmidt alleges in his claim that since 1993, the Department of Justice has not been informing the Minister about potential Charter inconsistencies as long as “some argument can reasonably be made in favour of its consistency – even if all arguments in favour of consistency have a combined likelihood of success of 5% or less.”
This 5% chance of success rate is the cause of the controversy. Schmidt, in his claim, notes that section 4.1(1) of the Department of Justice Act legally obligates the Minister of Justice to analyze every bill to determine whether any provisions are inconsistent with the Charter, and to report these to the House of Commons. He asks for a judge to declare that this section require a “more-likely-than-not inconsistent” approach, essentially a 51% chance of inconsistency, as opposed to the alleged current 95% chance of inconsistency, to require notification to the Minister. The Department of Justice will not confirm its internal procedures, citing solicitor-client privilege and Cabinet confidence.