Thank you, gentlemen, for joining us today. This is a very important piece of legislation, and I think we all agree on that. There is much in it that we are quite supportive of and are happy to see advanced.
However, as is my duty, I will have to ask you to comment.
General Cathcart, I have to direct this to you first. I hear your comments comparing your role as the JAG to the role of the Department of Justice, and your own views with respect to the Charter of Rights. I have to put to you the comments made in a affidavit to the Federal Court by Edgar Schmidt, who is a senior Department of Justice lawyer. He states in his affidavit that his instructions, personally given to him as a standard to be employed under statutory examinations of legislation, were essentially this:
...if any argument could reasonably be advanced in favour of the consistency of a provision of a bill or regulation with the Bill of Rights or the Canadian Charter of Rights and Freedoms, (the “Charter”), that was to be the end of my inquiry as it concerned the statutory examination. It was expressly made clear to me that the review was not to concern itself with whether a provision was more likely than not inconsistent with the Bill of Rights or the Charter or even whether a provision was almost certainly inconsistent with the Bill of Rights or the Charter—it was only when it was utterly certain that a provision was inconsistent with the Bill of Rights or the Charter because no reasonable argument existed in its favour that the Department considered any issue arose under the statutory examination provisions.
As a lawyer, sir, and you being a lawyer as well, I think I can say that most lawyers in Canada were probably shocked to hear that statement. I'd ask you to comment on that, in view of the approach that at least this individual says he was instructed to take in dealing with these provisions.
You mentioned that part of the review of this provision was a review by the Department of Justice. Did you get an opinion from them in accordance with their obligations with respect to some of these provisions? I know and you know that these have been challenged on the basis of the inconsistencies. That's not as a whole, but certain provisions could be inconsistent with an individual's right under the charter.