A-542-86
William James Millar (Appellant)
v.
The Queen as represented by the Treasury Board
(Respondent)
A-543-86
Bryan Osborne (Appellant)
v.
The Queen as represented by the Treasury Board
(Respondent)
A-556-86
Randy Barnhart, Linda Camponi, Michael Cas-
sidy, Ken Clavette and Heather Stevens (Appli-
cants) (Appellants)
v.
The Queen as represented by the Treasury Board
of Canada and the Public Service Commission
(Respondents)
INDEXED AS: OSBORNE v. CANADA (TREASURY BOARD) (C.A.)
Court of Appeal, Heald, Mahoney and Lacombe
JJ.—Ottawa, June 7, 8 and July 15, 1988.
Public service — Public Service Employment Act, s. 32(1)(a)
limiting public servants' right to "engage in work for ... or
against" political parties, of no force and effect — Not
reasonable limit on freedoms of expression and association
pursuant to Charter, s. 1 — Limits of "engage in work" not
defined — Subject to discretionary application, therefore
unreasonable — S. 32(1)(b), limiting candidacy expressed in
adequately definitive terms.
Constitutional law — Charter of Rights — Fundamental
freedoms — Public Service Employment Act, s. 32 limiting
public servants' right to work for or against political parties
and to participate in election campaigns — Although s. 32
activities subsumed in guarantee of freedom of expression,
also independently protected by guarantee of freedom of asso
ciation — Limit on candidacy expressed in adequately defini
tive terms.
Constitutional law — Charter of Rights — Limitation
clause — Public Service Employment Act, s. 32(1)(a), limiting
public servants' right to "engage in work" for political party
not demonstrably justified under Charter, s. 1 as subject to
discretionary application — Unreasonable limit on freedoms
of expression and association — Charter, s. 1 only criteria for
limitations on Charter guaranteed rights — Charter s. 26
(providing existence of other rights and freedoms not denied by
Charter guarantees) not ground for accepting legislation
implementing constitutional convention as by own force
paramount.
Elections — Public Service Employment Act, s. 32 limiting
rights of public servants to engage in political work and to run
for election — Whether infringing Charter, s. 2(b),(d) —
Whether reasonable limit on Charter guaranteed freedoms —
Right to associate for political purposes fundamental to
democratic process.
These were appeals from the dismissal of actions for declara
tions that section 32 of the Public Service Employment Act was
void for conflict with paragraphs 2(b) and (d) of the Charter.
Section 32 limits the right of federal public servants to partici
pate in federal and provincial election campaigns and to work
for or against political parties or candidates. The issue was
whether section 32 infringes upon the Charter guaranteed
freedoms of expression and association of federal public ser
vants and, if so, to what extent the limitation is justified under
section 1.
Held, the appeals should be allowed, and paragraph 32(1)(a)
of the Public Service Employment Act declared to be of no
force and effect as to employees other than deputy heads.
Section 32 contains two limitations—one as to political work,
the other as to candidacy. The constitutional convention of
political neutrality of the public service expressed in section 32
was said to give rise to a right of the public to be served by a
politically neutral civil service. The argument that that right
was preserved by section 26 of the Charter (which provides that
the guarantee of certain rights and freedoms in the Charter
shall not be construed as denying the existence of any other
rights) could not be agreed with. The effectiveness of legislation
limiting Charter guaranteed freedoms should be determined
only under section 1 of the Charter. Acceptance of legislation
implementing a constitutional convention as by its own force
paramount would establish a basis for exceptions to, and limita
tions of, Charter guaranteed rights and freedoms based on
criteria different from those of section 1. The existence of a
constitutional convention supporting a limitation may, however,
help to justify the limitation under section 1.
It was also argued that section 32 did not infringe the
freedom of association of public servants. The Supreme Court
of Canada considered the meaning of freedom of association in
Reference re Public Service Employee Relations Act (Alta.) in
light of the wide range of associations to which it must be
applied. It was held that freedom of association was particular
ly important for the exercise of other fundamental freedoms,
such as freedom of expression and freedom of conscience and
religion. These afforded a wide scope for protected activity in
association. Unlike the rights to bargain collectively and to
strike, dealt with in that case, the rights to be exercised by
persons who associate themselves for purposes of electoral
politics are not embodied in legislation. They are fundamental
to the democratic process. Denial of the opportunity to actively
influence voters would render the freedom to associate for
lawful political purposes hollow. While the activities affected
by section 32 may be largely subsumed in the guarantee of
freedom of expression, they are also independently protected by
the guarantee of freedom of association.
Paragraph 32(1)(a) does not impose a reasonable limit on
the freedoms of expression and association of federal public
servants pursuant to section 1 of the Charter. A reasonable
limit should be expressed in terms sufficiently clear to permit a
determination of where and what the limit is. A limit which is
vague, ambiguous, uncertain, or subject to discretionary deter
mination is unreasonable. The phrase "engage in work" in
paragraph 32(1)(a) is subject to discretionary application as
the Act does not define the limits of "engage in work". The
Public Service Commission has often expressed its difficulty in
defining the activities prescribed by paragraph 32(1)(a). The
Trial Judge erred in limiting the remedy to a declaration that
certain activities were outside the paragraph's proscription.
The limitation on candidacy (paragraph 32(1)(b)) is
expressed in adequately definitive terms. Its reasonableness was
to be assessed by application of the principles enunciated in
The Queen v. Oakes, including the proportionality test, which
involves the balancing of the interests of society against those of
individuals and groups. The public interest in a politically
neutral public service and the importance of that interest were
expounded in Fraser v. Public Service Staff Relations Board.
The advent of the Charter has not changed that interest or its
importance; it has simply added countervailing individual
rights. Disloyalty to the government, as distinct from the
governing party, will not be shielded by the Charter. The
scheme of paragraph 32(1)(b) constitutes a rational, reasonable
and fair basis upon which a federal public servant may seek a
legislative seat and, if unsuccessful, may be allowed to return to
the public service. Although certain anomalies detract from the
rationality of the scheme, they do not militate against the rights
of the public servant.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 1, 2(b),(d), 15, 26.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
s. 52(b)(î).
Public Service Employment Act, R.S.C. 1970, c. P-32,
s. 32.
CASES JUDICIALLY CONSIDERED
APPLIED:
The Queen v. Oakes, [1986] 1 S.C.R. 103; Luscher v.
Deputy Minister, Revenue Canada, Customs and Excise,
[1985] 1 F.C. 85 (C.A.); Fraser v. Public Service Staff
Relations Board, [1985] 2 S.C.R. 455.
DISTINGUISHED:
Reference re Public Service Employee Relations Act
(Alta.), [1987] 1 S.C.R. 313.
REVERSED:
Osborne v. Canada (Treasury Board), [1986] 3 F.C. 206
(T.D.).
CONSIDERED:
Public Service Alliance of Canada v. The Queen, [1984]
2 F.C. 889 (C.A.).
REFERRED TO:
OPSEU v. Ontario (Attorney General), [1987] 2
S.C.R. 2.
COUNSEL:
Dougald E. Brown for appellants Millar and
Osborne.
Jeffry A. House for applicants (appellants)
Barnhart, Camponi, Cassidy, Clavette and
Stevens.
Duff F. Friesen, Q.C. for respondents.
SOLICITORS:
Nelligan/Power, Ottawa, for appellants
Millar and Osborne.
Jeffry A. House, Toronto, for applicants
(appellants) Barnhart, Camponi, Cassidy,
Clavette and Stevens.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: These appeals, heard together,
are taken from judgments of the Trial Division,
[1986] 3 F.C. 206, which dismissed the various
appellants' actions, tried together, for declarations
that section 32 of the Public Service Employment
Act, R.S.C. 1970, c. P-32, hereinafter "the Act",
is void by reason of its conflict with paragraphs
2(b) and (d) and section 15 of the Canadian
Charter of Rights and Freedoms [being Part I of
the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.)] and for consequen
tial injunctive relief. The learned Trial Judge did
make declarations as to specific activities which, in
his view, were not prohibited by section 32. Those
declarations were not subject of specific attack on
appeal.
All of the appellants but Cassidy, a Member of
Parliament, are federal public servants. None is a
deputy head as defined by the Act and the applica
tion of section 32 to a deputy head is not raised in
the proceedings. Nothing herein is intended to be
taken as implying a concluded opinion on Cas-
sidy's status in these proceedings; the term "appel-
lant" hereinafter refers only to the others.
Section 32 limits the appellants' right to partici
pate in federal and provincial election campaigns
and to work for or against political parties. The
Trial Judge found that section 15 of the Charter
had no application to the facts. That finding was
not put in issue on appeal. What remains is wheth
er section 32 infringes upon the Charter guaran
teed freedoms of expression and association of
federal public servants and, if so, to what extent if
at all, the limitation is justified under section 1. In
my opinion, the particular activities undertaken or
desired to be undertaken by individual appellants
are immaterial to those issues.
The Trial Judge seems to have found, at least
provisionally, that section 32 did infringe the
appellants' freedoms of expression and association
but was, in any event, saved by section 1. He
expressed his conclusion, at pages 243-244, as
follows:
To conclude therefore I find that even if section 32 of the
Public Service Employment Act infringes rights of individual
public servants guaranteed by sections 2(b) and (d) or section
15 of the Canadian Charter of Rights and Freedoms the
provisions of it are reasonable limits prescribed by law and are
demonstrably justified in a free and democratic society so that
section 1 of the Charter can be properly applied.
As stated, he had previously found section 15 not
to apply.
The material provisions of section 32 follow:
32. (1) No deputy head and, except as authorized under this
section, no employee, shall
(a) engage in work for, on behalf of or against a candidate
for election as a member of the House of Commons, a
member of the legislature of a province or a member of the
Council of the Yukon Territory or the Northwest Territories,
or engage in work for, on behalf of or against a political
party; or
(b) be a candidate for election as a member described in
paragraph (a).
(2) A person does not contravene subsection (1) by reason
only of his attending a political meeting or contributing money
for the funds of a candidate for election as a member described
in paragraph (1)(a) or money for the funds of a political party.
(3) Notwithstanding any other Act, upon application made
to the Commission by an employee the Commission may, if it is
of the opinion that the usefulness to the Public Service of the
employee in the position he then occupies would not be
impaired by reason of his having been a candidate for election
as a member described in paragraph (1)(a), grant to the
employee leave of absence without pay to seek nomination as a
candidate and to be a candidate for election as such a member,
for a period ending on the day on which the results of the
election are officially declared or on such earlier day as may be
requested by the employee if he has ceased to be a candidate.
(5) An employee who is declared elected as a member
described in paragraph (1)(a) thereupon ceases to be an
employee.
(6) Where any allegation is made to the Commission by a
person who is or has been a candidate for election as a member
described in paragraph (1)(a), that a deputy head or employee
has contravened subsection (1), the allegation shall be referred
to a board established by the Commission to conduct an inquiry
at which the person making the allegation and the deputy head
or employee concerned, or their representatives, are given an
opportunity of being heard, and upon being notified of the
board's decision on the inquiry the Commission,
(a) in the case of a deputy head, shall report the decision to
the Governor in Council who may, if the board has decided
that the deputy head has contravened subsection (1), dismiss
him; and
(b) in the case of an employee, may, if the board has decided
that the employee has contravened subsection (1), dismiss
the employee.
There are effectively two limitations: that of para
graph 32(1)(a) as qualified by subsections (2) and
(6), as to political work, and that of paragraph
32(1)(b), as qualified by subsections (3), (5) and
(6), as to candidacy. Subsections (4) and (7) deal
respectively with publication of notices and the
definition of "deputy head".
The pertinent provisions of the Charter are:
1. The Canadian Charter of Rights and Freedoms guaran
tees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
2. Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression,
including freedom of the press and other media of
communication;
(d) freedom of association.
The Attorney General, on behalf of the respond
ents, propounded the existence of a constitutional
convention of political neutrality on the part of the
public service which finds statutory expression in
section 32. I,accept that there is such a convention.
The convention is said to give rise to a right of the
public at large to be served by a politically neutral
civil service. That public right is preserved by
section 26 of the Charter:
26. The guarantee in this Charter of certain rights and
freedoms shall not be construed as denying the existence of any
other rights or freedoms that exist in Canada.
In the Attorney General's submission the public
right, arising out of the convention, legislated by
section 32 and preserved by section 26, pre-empts
the appellants' freedoms of expression and
association.
In my opinion, the effectiveness, if any, of legis
lation limiting Charter guaranteed freedoms is to
be dealt with only under section 1 of the Charter.
To accept legislation implementing a constitution
al convention as, ex proprio vigore, paramount
would be to establish a basis for exceptions and
limitations to Charter guaranteed rights and free
doms on application of criteria different from
those of section 1, of which it was said, in The
Queen v. Oakes, [1986] 1 S.C.R. 103, at page 135:
it states explicitly the exclusive justificatory criteria (outside of
s. 33 of the Constitution Act, 1982) against which limitations
on those rights and freedoms must be measured.
That is not, of course, to say that establishment of
the existence of a Canadian constitutional conven
tion supporting a limitation may not go a long way
toward demonstrating its justification in this free
and democratic society.
Aside from pre-emption consequent upon the
constitutional convention, it was not argued that
section 32 did not infringe the freedom of expres
sion of federal public servants. It was, however,
argued that it did not infringe their freedom of
association. In support of that proposition, the
Attorney General relied primarily on the some
what fragile authority of my judgment for the
majority of this Court in Public Service Alliance
of Canada v. The Queen, [1984] 2 F.C. 889
(C.A.), at page 895:
The right of freedom of association guaranteed by the Chart
er is the right to enter into consensual arrangements. It protects
neither the objects of the association nor the means of attaining
those objects.
An appeal from that judgment was dismissed, the
Chief Justice of Canada and Wilson J., dissenting,
[1987] 1 S.C.R. 424, however it was made clear
that I had stated the proposition at least somewhat
too broadly. Le Dain J., speaking as well for Beetz
and La Forest JJ., adopted his reasons in Refer
ence re Public Service Employee Relations Act
(Alta.), a judgment rendered at the same time,
[1987] 1 S.C.R. 313, at pages 390-391.
In considering the meaning that must be given to freedom of
association in s. 2(d) of the Charter it is essential to keep in
mind that this concept must be applied to a wide range of
associations or organizations of a political, religious, social or
economic nature, with a wide variety of objects, as well as
activity by which the objects may be pursued. It is in this larger
perspective, and not simply with regard to the perceived
requirements of a trade union, however important they may be,
that one must consider the implications of extending a constitu
tional guarantee, under the concept of freedom of association,
to the right to engage in particular activity on the ground that
the activity is essential to give an association meaningful
existence.
In considering whether it is reasonable to ascribe such a
sweeping intention to the Charter I reject the premise that
without such additional constitutional protection the guarantee
of freedom of association would be a meaningless and empty
one. Freedom of association is particularly important for the
exercise of other fundamental freedoms, such as freedom of
expression and freedom of conscience and religion. These afford
a wide scope for protected activity in association. Moreover, the
freedom to work for the establishment of an association, to
belong to an association, to maintain it, and to participate in its
lawful activity without penalty or reprisal is not to be taken for
granted. That is indicated by its express recognition and protec
tion in labour relations legislation. It is a freedom that has been
suppressed in varying degrees from time to time by totalitarian
regimes.
What is in issue here is not the importance of freedom of
association in this sense, which is the one I ascribe to s. 2(d) of
the Charter, but whether particular activity of an association in
pursuit of its objects is to be constitutionally protected or left to
be regulated by legislative policy. The rights for which constitu
tional protection are sought—the modern rights to bargain
collectively and to strike, involving correlative duties or obliga
tions resting on an employer—are not fundamental rights or
freedoms. They are the creation of legislation, involving a
balance of competing interests in a field which has been
recognized by the courts as requiring a specialized expertise.
Unlike the rights to bargain collectively and to
strike, the rights properly to be exercised by per
sons who associate themselves for purposes of elec
toral politics are neither modern nor creatures of
legislation. They are fundamental to a process
whose essence is that conflicting interests be
advanced and opposed by electoral means and no
other. All legitimate political activity has the ulti
mate, if not immediate, objective of influencing
the electorate. Denial of the opportunity actively
to influence voters would render the freedom to
associate for lawful political purposes a hollow
thing indeed.
While the activities affected by section 32, as Le
Dain J., suggested might be the case, may be
largely, if not entirely subsumed in the guarantee
of freedom of expression, it seems to me that they
are also protected, independently, by the guarantee
of freedom of association. What remains is wheth
er the limitation of those freedoms has been
demonstrably justified under section 1 of the
Charter. In the present case, at least, there appears
no need to make distinctions in applying section 1
to the limitations on the two freedoms.
In so far as the limitation on political work is
concerned, in my opinion, the first question is
whether the limitation is reasonable at all, having
regard to the terms in which it is expressed.
Hugessen J., speaking for this Court in Luscher v.
Deputy Minister, Revenue Canada, Customs and
Excise, [1985] 1 F.C. 85, at pages 89-90, stated:
In my opinion, one of the first characteristics of a reasonable
limit prescribed by law is that it should be expressed in terms
sufficiently clear to permit a determination of where and what
the limit is. A limit which is vague, ambiguous, uncertain, or
subject to discretionary determination is, by that fact alone, an
unreasonable limit. If a citizen cannot know with tolerable
certainty the extent to which the exercise of a guaranteed
freedom may be restrained, he is likely to be deterred from
conduct which is, in fact, lawful and not prohibited. Uncertain
ty and vagueness are constitutional vices when they are used to
restrain constitutionally protected rights and freedoms. While
there can never be absolute certainty, a limitation of a guaran
teed right must be such as to allow a very high degree of
predictability of the legal consequences.
It is useful again to recite paragraph 32(1)(a).
32. (1) No deputy head and, except as authorized under this
section, no employee, shall
(a) engage in work for, on behalf of or against a candidate
for election as a member of the House of Commons, a
member of the legislature of a province or a member of the
Council of the Yukon Territory or the Northwest Territories,
or engage in work for, on behalf of or against a political
party; or
The operative phrase is "engage in work"; it is
wide open to discretionary application.
The evidence, from the publications of the
Public Service Commission, charged with adminis
tering the Act, is conclusive. In its 1977 Annual
Report, Appeal Book, Appendix 1, Volume 5, page
632, the Commission stated:
The area of direct concern to the Public Service Commission is
the Administrative feasibility of the Act. Section 32 has gener
ated considerable difficulty in this regard. As an illustration,
Subsection (1) states that "no employee shall engage in work
for, on behalf of or against a candidate for election as a
member of the House of Commons, a member of the legislature
of a province, or a member of the Council of the Yukon
Territory or the Northwest Territories, or engage in work for,
on behalf of or against a political party". The legislators have
provided no guidance to the Commission on the types of
activity intended to be covered by the words "engage in work".
They apparently intended to leave the interpretation to the
judgment of the Commissioners. The Commissioners' concern
is to ensure that rulings and opinions interpreting these provi
sions of the Act do indeed reflect the wishes of Parliament,
particularly in these changing times. The complexity of inter
preting Parliament's intentions in this sensitive domain can be
illustrated by looking at the position of the United States of
America where civil servants are restricted from "taking active
part in political management or political campaigns". The
definition of "active part" is based on some 3000 separate
rulings of the United States Civil Service Commission.
The Commission returned to the problem in a
letter to directors of personnel prior to the 1980
federal general election, ibid., Volume 2, page 113
ff. After dealing with the subsection 32(3) process,
it wrote:
This leaves to be addressed the vexing problem of what consti
tutes proscribed political activity for public servants who
remain in the active employ of the Public Service. Besides being
permitted under the PSEA to attend political meetings and to
contribute funds to a political party or to a candidate for
election, are there any other activities which public servants can
engage in without violating the provisions of the Act? Unfortu
nately, as the law now reads, the Commission is simply not in a
position to provide public servants with any a priori definitive
answer to this question. While the Act states in clear and
unequivocal language that "no employee shall engage in work
for on behalf of or against a political party", it does not spell
out in specific terms precisely what type and range of activities
are in fact prohibited, or conversely what activities might be
permitted (aside from the aforementioned limited exceptions.)
Since no specific lists of "do's" and "don't's" can be com
piled in the circumstances, the best that can be done is to bring
the pertinent legal provisions to the attention of public servants
and advise them that ultimately they must rely on their own
counsel, good judgment and discretion in deciding whether or
not to undertake particular activities. Nevertheless, public ser
vants are well advised, in cases of doubt, to err on the side of
caution. If the specific wording of the Act is unclear, the
intention of the Act certainly is not—namely, the maintenance
of a public service with the highest possible standards of
political neutrality exhibited by its employees.
It seems to me that the concerns of the Commis
sion, amply justified by the lack of definition of
"engage in work" other than the exceptions of
subsection 32(2), has identified in clear, if pre
scient, terms precisely the constitutional vice later
defined in the Luscher decision.
Finally, in February, 1984, the Commission
issued a message to federal employees, ibid.,
Volume 1, page 46, which effectively served notice
on them, whether tradesmen or managers, that
anything done, other than voting or as expressly
authorized by section 32 strictly construed, would
be done at their peril. For example, the exercise of
the right to make financial contributions was rec
ognized as potentially involving membership in a
political party. The guidelines instructed:
public servants should refrain from exercising some of the usual
rights, privileges and responsibilities which normally flow from
such membership but which could jeopardize their impartiality
in the eyes of others.
The Commission remained unable to define the
limits of "engage in work" with any real certainty.
In my respectful opinion, the Trial Judge erred
in limiting the remedy to a declaration that the
particular activities which some appellants wished
to undertake, e.g. attend a leadership convention
or stuff envelopes, did not fall within the para
graph's proscription. Paragraph 32(1)(a) does not
impose a reasonable limit on the freedom of
expression and association of federal public ser
vants and it should be so declared.
That conclusion renders unnecessary consider
ation of the evidence, entirely properly introduced
at trial, as to the extent public servants are allowed
to take active part in the partisan political process
in various democratic jurisdictions, provincial and
foreign. It also effectively sustains the limited
relief granted by the Trial Judge.
The limitation on candidacy is expressed in ade
quately definitive terms. Its reasonableness is to be
assessed by application of the principles enunciat
ed in The Queen v. Oakes, supra, at page 135 ff. It
is unnecessary to set out all of those principles
since the appellants take issue only with the pro
portionality of the limitation imposed. The
legitimacy of the objective of a politically neutral
public service is not questioned. However, since
application of the proportionality test does entail
balancing a limitation against its objective, the
latter must be defined.
The test was propounded in The Queen v.
Oakes, at page 139, in the following terms:
Although the nature of the proportionality test will vary
depending on the circumstances, in each case courts will be
required to balance the interests of society with those of
individuals and groups. There are, in my view, three important
components of a proportionality test. First, the measures adopt-
ed must be carefully designed to achieve the objective in
question. They must not be arbitrary, unfair or based on
irrational considerations. In short, they must be rationally
connected to the objective. Second, the means, even if rational
ly connected to the objective in this first sense, should impair
"as little as possible" the right or freedom in question: R. v. Big
M Drug Mart Ltd. [[1985] 1 S.C.R. 295], at p. 352. Third,
there must be a proportionality between the effects of the
measures which are responsible for limiting the Charter right
or freedom, and the objective which has been identified as of
"sufficient importance".
Fraser v. Public Service Staff Relations Board,
[1985] 2 S.C.R. 455, was not a Charter case. It
did however involve the discharge of a public
servant who undertook political activities, albeit
non-partisan, against policies of the government of
the day, but not of the agency he immediately
served. In that judgment, at page 470 ff., Dickson
C.J., for the Court, made a number of observa
tions, highly pertinent to the present appeals:
The federal public service in Canada is part of the executive
branch of Government. As such, its fundamental task is to
administer and implement policy. In order to do this well, the
public service must employ people with certain important char
acteristics. Knowledge is one, fairness another, integrity a third.
As the Adjudicator indicated, a further characteristic is
loyalty. As a general rule, federal public servants should be
loyal to their employer, the Government of Canada. The loyalty
owed is to the Government of Canada, not the political party in
power at any one time. A public servant need not vote for the
governing party. Nor need he or she publicly espouse its
policies. And indeed, in some circumstances a public servant
may actively and publicly express opposition to the policies of a
government. This would be appropriate if, for example, the
Government were engaged in illegal acts, or if its policies
jeopardized the life, health or safety of the public servant or
others, or if the public servant's criticism had no impact on his
or her ability to perform effectively the duties of a public
servant or on the public perception of that ability. But, having
stated these qualifications (and there may be others), it is my
view that a public servant must not engage, as the appellant did
in the present case, in sustained and highly visible attacks on
major Government policies. In conducting himself in this way
the appellant, in my view, displayed a lack of loyalty to the
Government that was inconsistent with his duties as an
employee of the Government.
As the Adjudicator pointed out, there is a powerful reason
for this general requirement of loyalty, namely the public
interest in both the actual, and apparent, impartiality of the
public service. The benefits that flow from this impartiality
have been well-described by the MacDonnell Commission.
Although the description relates to the political activities of
public servants in the United Kingdom, it touches on values
shared with the public service in Canada:
Speaking generally, we think that if restrictions on the
political activities of public servants were withdrawn two
results would probably follow. The public might cease to
believe, as we think they do now with reason believe, in the
impartiality of the permanent Civil Service; and Ministers
might cease to feel the well-merited confidence which they
possess at present in the loyal and faithful support of their
official subordinates; indeed they might be led to scrutinize
the utterances or writings of such subordinates, and to select
for positions of confidence only those whose sentiments were
known to be in political sympathy with their own.
If this were so, the system of recruitment by open competi
tion would provide but a frail barrier against Ministerial
patronage in all but the earlier years of service; the Civil
Service would cease to be in fact an impartial, non-political
body, capable of loyal service to all Ministers and parties
alike; the change would soon affect the public estimation of
the Service, and the result would be destructive of what
undoubtedly is at present one of the greatest advantages of
our administrative system, and one of the most honourable
traditions of our public life.
See paragraphs 10-11 of c. 11 of MacDonnell Committee
quoted in Re Ontario Public Service Employees Union and
Attorney-General for Ontario (1980), 31 O.R. (2d) 321
(C.A.), at p. 329.
There is in Canada, in my opinion, a similar tradition
surrounding our public service. The tradition emphasizes the
characteristics of impartiality, neutrality, fairness and integrity.
A person entering the public service or one already employed
there must know, or at least be deemed to know, that employ
ment in the public service involves acceptance of certain
restraints. One of the most important of those restraints is to
exercise caution when it comes to making criticisms of the
Government.
I have quoted an unusually long passage for two
reasons. Firstly, the public interest in a politically
neutral public service and the importance of that
interest are definitively expounded in a contempo
rary context. The advent of the Charter has not
changed that interest or its importance; it has
simply added countervailing individual rights.
Secondly, and notwithstanding the caution sig
nalled in OPSEU v. Ontario (Attorney General),
[1987] 2 S.C.R. 2, the judgment seems to me at
the very least to point to a minimum standard
appropriate to public servants who choose to exer
cise their freedoms of association and expression in
a partisan political arena. Disloyalty to the govern
ment, as distinct from the governing party, will not
be shielded by the Charter.
For any but the sycophant or Minister of the
Crown, the ordinary incidents of a campaign for
nomination and election to Parliament or legisla
ture include at least a real potential for public
disagreement with major subsisting federal gov
ernment policy. A credible campaign may demand
it; the enthusiasm of a campaign may invite it,
perhaps irresistibly. A public servant entering into
a nomination or election campaign as a candidate
must be taken to realize that he may, more likely
unintentionally than not, call into legitimate ques
tion at least his apparent ability to function there
after impartially. He should not expect to be paid
while running nor to return unchallenged to his
position if the race is lost.
The scheme of paragraph 32(1)(b) and its modi
fying subsections seems to me generally to consti
tute a rational, reasonable and fair basis upon
which a federal public servant may seek a Parlia
mentary or legislative seat and, if unsuccessful,
may be allowed to return to the public service.
There are anomalies which detract from the
rationality of the legislative scheme. For example,
the justification for the limitation on the right of a
public servant to be a candidate is preservation of
a politically neutral public service yet, by subsec
tion 32(6), no inquiry as to whether that neutrality
has been illegally compromised can be undertaken
unless initiated by the complaint of another candi
date. It was unnecessary to consider this in the
context of paragraph 32(1)(a) but, in the context
of paragraph 32(1)(b), one might think the Public
Service Commission, unprompted by another can
didate, competent to initiate the process. Another
anomaly is that, once leave of absence is obtained,
nothing the candidate may do in pursuit of nomi
nation and election, except ultimately win, negates
his right to return to his public service position;
that has been predetermined. These anomalies do
not militate against the rights of the public servant
however they may appear from other points of
view.
In the result, I would allow the appeals with
costs. Pursuant to subparagraph 52(b)(î) of the
Federal Court Act, [R.S.C. 1970 (2nd Supp.),
c. 10], I would set aside the judgments of the Trial
Division, except the awards of costs to the appel
lants Millar and Osborne, and declare paragraph
32(1)(a) of the Public Service Employment Act to
be of no force and effect as to employees other
than deputy heads. I would also award the appel
lants in appeal A-556-86 their costs at trial.
HEALD J.: I agree.
LACOMBE J: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.