That's an excellent question.
The first time I wondered about this was over the holidays. It may not have been news in your neck of the woods, but I'm from the national capital region, so it caught my attention when the media here reported on the case, even though I was out of town at the time. As the justice critic, anytime anyone casts doubt on the justice system, I take notice, regardless of the party it's coming from.
Department of Justice employee Edgar Schmidt filed a claim against the Attorney General of Canada, and the case is now before the Federal Court. I won't read you his entire claim, because I don't think that's what matters. I don't want to get into a debate over who is right and who is wrong. The fact of the matter is that the Attorney General of Canada has been taken to court over a claim that the government is not properly honouring its legal obligation under section 4.1 of the Department of Justice Act. The Conservatives are not the source of the problem. I understand what Mr. Cotler was saying earlier, but the claim of the individual in question indicates that this situation dates as far back as 1993. The department's position has always been that even a 5% likelihood of success is sufficient to discharge the government of its obligation.
People may not be very familiar with that obligation. I included it in my motion because I felt it was important. We all know the situation. The opposition has often criticized the government for using private member's bills to get around the obligation. That has always been my sense, to a certain extent, but now, it's worse. In our democracy, the cornerstone of our system has to be the rule of law; otherwise total chaos and anarchy will take hold, and I don't think anyone wants that.
There is no problem if we assume that the exercise is being done correctly when government bills are passed by the House and referred to committees for study. And I am talking not only about justice-related bills, but about all bills. This test is mandatory in every single case.
Mr. Cotler pointed out, and rightly so, that the system was designed that way to benefit Canadians, at the end of the day. They are told that a test was done and that the legislation is deemed to be reasonable and to comply with the charter and constitutional powers. Then bills move along in their usual fashion and receive more in-depth consideration.
The current case, however, suggests something quite different. As a lawmaker, I find that very troubling. Anytime I speak with the minister, regardless of the committee, I'll think that the people at the department might not have done their job on this or that. It's troubling because it suggests a disregard for compliance with the charter. Our job is to question witnesses about the substance of bills. As part of our detailed study, we will have to question whether a provision we wish to amend in Bill S-9 was analysed for charter compliance.
I will just finish by saying I don't think this motion is dangerous for the government. It is in everyone's interest to make sure the rules are being followed properly. That was the idea in all this.
The story came out over the holidays, in December or January. I thought I would put the question to the minister and, depending on his answer, determine whether I needed to take things further. I would figure out if I needed to ask the committee to study the issue, hear from department officials, basically look into the problem identified in the Schmidt case. The courts will deal with that specific case, but perhaps the committee could examine the intellectual process followed to assure the minister that everything complies with subsection 4.1(1) of the Department of Justice Act and that when—
he signs off on a law that it is all right. And if it's not, they can also say “notwithstanding the charter” because we want this implemented, and there's nothing wrong with that.