I think your description is consistent with what the Federal Court of Appeal found. It said that the executive is not limited to proposing measures that are:
...certain to be constitutional or likely to be constitutional. Rather, as a constitutional matter, in the words of the Federal Court...it is entitled to put forward proposed legislation that, after a “robust review of the clauses in draft legislation” is “defendable in Court.”
The court goes on to ask why that is. One of the reasons is that the charter is a document suffused with balances. It's not unequivocal. There are no unqualified guarantees of rights and freedoms. There's considerable scope for questioning debate, deliberation in Parliament, vis-à-vis that. At the end of the day, there's a role for courts to play.
What's interesting in the decision in Schmidt is that the court goes through, in large measure, highlighting some of the uncertainties in predicting. They talk about the fact that the constitutional authorities are not necessarily good precedents in later cases. Courts now depart more readily from earlier constitutional precedents.
We're talking about some of the decisions from the 1980s. This is more than 20 years later. We've seen the court, and Schmidt talks about certain specific cases—the Carter case on physician-assisted death where the court changed its jurisprudence on constitutional validity in a charter matter.