Aspirations for innovation: Big Data and the Schmidt appeal

  • January 08, 2019
  • Candice Pollack

The Schmidt v Canada (Attorney General), 2018 FCA 55 appeal has introduced an opportune moment for considering the prospective improvements Big Data1 can offer to the legislative and policymaking process in Canada. While much of the legal focus on Big Data has been around examining its impact on the privacy rights of individuals (and rightly so!)2, Big Data also presents us with the potential for making better, evidence-informed public policy decisions. This article will examine some of the issues arising from the Schmidt case from a lens of opportunity, contemplating how Big Data can usher in an era of deeper enlightenment in policymaking and proactive protection of the fundamental rights enshrined in the Canadian Charter of Rights and Freedoms (Charter).

Schmidt raises the issue of what assessment standard should be used when examining a proposed bill, statute, or regulation for constitutionality and consistency with the Canadian Bill of Rights and the Charter. The principles of democracy and the rule of law lie at the heart of this legal challenge, where a public servant is demanding that the Crown reflect on its standards for protecting the fundamental rights of Canadians in the lawmaking process. The Federal Court of Canada and the Federal Court of Appeal (FCA) have dismissed the case, and Stratas JA has cited some interesting reasons as obiter dicta for maintaining the current “credible argument” standard, including:

  • It would be impractical to expect the Minister of Justice and her lawyers in the Department of Justice (DoJ) to form a comprehensive opinion predicting Charter conformity due to the variable and uncertain nature of constitutional law and its jurisprudence3; and
  • The current standard of assessment reflects the separation of powers and respects the role each branch of our democratic system plays in upholding the Constitution. In this system, the Courts have the ultimate authority to determine the constitutionality of legislation, and act as a sufficient check on the power of the Executive to enact new laws.4

Big Data gives us the opportunity for better assessments of Charter conformity, and there are a number of reasons for government to take advantage of this new tool to improve the pre-enactment assessment process.

What data can do

The FCA noted in its decision the impracticality of the expectation that Department of Justice lawyers provide a comprehensive assessment of Charter implications prior to enactment. I agree that it remains unreasonable to expect lawyers to unearth all potential Charter implications, however, the incorporation of Big Data into the legislative and policymaking process can facilitate and improve a Charter impact assessment process in the following ways:

  • Big Data can provide the macro insights necessary for identifying and analyzing legislative or policy options5. With extensive datasets available for analysis, Big Data can be used to identify the multiplicity of underlying and interrelated causes to complex policy issues, making it easier to detect potential implications of a legislative or policy solution.
  • Disruptive technologies being created to support the use of Big Data offer new techniques for policy development that can garner insight into complex questions that were previously unanswerable.6 Tools such as predictive modelling and data mining7 can form the basis of advanced Charter analyses for more comprehensive impact assessments.
  • Big Data affords us the opportunity to better measure the performance of existing laws, policies, and programs for Charter implications. Turning an eye toward the performance measures of existing legislation and policies around particular issues can highlight expected outcomes and unintended impacts that should be considered in the development of new, related laws or policies.

In summary, the volume and variety of available data and the velocity at which we can retrieve and analyze it should promote and empower governments to develop better, evidence-informed policies and laws, as well as enrich the Charter impact assessment process.

Cost of not using data tools

In its request for leave to appeal, the legal team supporting Edgar Schmidt made submissions regarding the potential costs to Canadians of a weakened pre-enactment Charter review system. Their arguments are simple: (1) failure to undertake a proper Charter impact assessment prior to enactment may result in Charter violations that cause irreparable harm to Canadian citizens (e.g. unlawful imprisonment or deportation); (2) lack of a full Charter analysis prior to a formal court challenge shifts the onus of proof to citizens to demonstrate that a law was unconstitutional before it was even enacted, raising significant concerns regarding access to justice; and (3) enacting legislation without performing due diligence inquiries into its constitutionality undermines some of the fundamental principles upon which our legal system is built, namely, democracy and the rule of law.8

These are strong arguments for reconsidering the standard of assessment currently used by the Justice Department, and the timing is right for this conversation. Canadians are looking to their government to take a systematic approach to decision-making that considers the best available evidence in the policy and legislative development process9 and the tools are now available to make this a reality. Big Data affords access to more data and more types of data than ever before and new technologies are opening the door for more advanced and efficient impact analyses. Lawyers in the Justice Department have the opportunity to innovate by using Big Data to conduct proactive and enlightened Charter impact assessments, ultimately strengthening Canadian democracy and the rule of law. Simply put, lawyers and decision-makers have the ability and the opportunity to do better: to better protect human rights, to better uphold our Constitution, and to better ensure that the fundamental values of Canadians are reflected in our policies and legislation. While the Court may not agree with Edgar Schmidt’s proposal that such an obligation exists, the Canadian public certainly has the right to expect more out of both our democracy and the institutions tasked with its advancement and protection.

Candice Ashley Pollack is the Manager of Knowledge Acquisition and Stakeholder Engagement (KASE) for AGE-WELL’s National Innovation Hub: Advancing Policies and Practices in Technology and Aging (APPTA).

End notes

1. Big Data consists of “extensive datasets primarily in the characteristics of volume, variety, velocity, and/or variability that require a scalable architecture for efficient storage, manipulation, and analysis”, see: Deloitte, Big Data Analytics for Policy Making, (2016) Report prepared for the European Commission Directorate General for Informatics (Deloitte), at 13.

2. There are many articles already discussing the issues of protection of privacy rights and meaningful consent in relation to Big Data. While I will not be addressing these considerations here, they remain key to protecting Canadian democracy and should be used to inform and limit any policymaking process that utilizes Big Data to make evidence-based decisions. 

3. Schmidt v. Canada (Attorney General), 2018 FCA 55 (Schmidt) paras. 90-100.

4. Ibid at 81-87.

5. Deloitte, supra note 1 at 47.

6. Ibid at 9.

7. Ibid at 11.

8. Appellant’s Memorandum of Fact and Law, Schmidt v. Canada (Attorney General), 2018 FCA 55 at paras. 85-89.

9. Deloitte, supra note 1 at 9.