Department of Justice lawyer Edgar Schmidt at his home in Val des Monts, Quebec, February 20, 2013 . Schmidit has launched an unprecedented court action to have a judge declare that the DOJ is violating Parliamentary requirements that it be informed if a new law could breach Charter of Rights guarantees.Dave Chan/The Globe and Mail
Canada's Justice Minister says there is "no question" that the series of criminal justice reforms his government has introduced will stand up to constitutional tests, despite allegations that his department's vetting standards are inadequate.
Rob Nicholson pointed out that the Supreme Court of Canada upheld the basic tenets of a law introduced in 2008 on breathalyzer tests for drunk driving, and said he is confident other laws will pass muster.
The government's process for vetting proposed bills was called into question after a veteran Justice Department lawyer launched a legal action claiming his department was not meeting a legal requirement to inform Parliament of likely breaches to the Charter of Rights and Freedoms.
Edgar Schmidt has said that government lawyers were told not to raise concerns about new legislation, even if it was almost certain that a Charter challenge would succeed, as long as some argument could reasonably be made that the legislation was compliant. He has been suspended without pay since he filed the claim.
In a recent interview with The Globe and Mail, Mr. Nicholson said he doesn't believe there is a problem with the current system for vetting legislation.
"It's been the same for about the last 20 years or so," he said. "So it's the process in place. And the department is very careful on these, and again, they analyze these, and they give us advice. And I'm confident that all the pieces of legislation that we've introduced are constitutional. ... No question about it."
Earlier this year, the B.C. Supreme Court struck down a section of the Immigration and Refugee Act on human smugglers, saying it was "unnecessarily broad." The law, which came into force a decade ago under the Liberals, made it a criminal offence to "knowingly organize, induce, aid or abet" someone coming to Canada without documentation.
Another law, introduced by the Conservative government in 2008, is also facing a court challenge. The Ontario Court of Appeal recently heard arguments in six cases involving illegal possession of a loaded gun, an offence that carries a three-year mandatory minimum sentence. In one of the cases, a trial judge had ruled the three-year minimum would be cruel and unusual punishment for a man who was caught taking a picture of himself while posing with a loaded gun.
Mr. Nicholson said the government is prepared to defend its legislation before the courts.
"This is part of what we do on the Attorney-General's side, is we will defend those [bills that are challenged] and we're confident that they are constitutional," Mr. Nicholson said.