T-1226-84
Bryan Osborne (Plaintiff)
v.
The Queen as represented by the Treasury Board
(Defendant)
T-1239-84
William James Millar (Plaintiff)
v.
The Queen as represented by the Treasury Board
(Defendant)
T-1636-84
Randy Barnhart, Linda Camponi, Michael Cas-
sidy, Ken Clavette and Heather Stevens (Plain-
tiffs)
v.
The Queen as represented by the Treasury Board
of Canada and Public Service Commission
(Respondents)
INDEXED AS: OSBORNE V. CANADA (TREASURY BOARD)
Trial Division, Walsh J.—Ottawa, April 7, 8, 9,
10, 11; August 22, 1986.
Public service — Political activity of public servants
restricted by Public Service Employment Act, s. 32 — Prohib
ited from working for or against candidate or party — Wheth
er violation of Charter of Rights — Three actions with differ
ent facts heard together — Public servant elected delegate to
Liberal Party leadership convention — Supervisor advising
penalty imposed if not resigning as delegate — S. 32 permit
ting attendance at political meeting — Other public servants
wishing to work for election of candidate by public speaking or
envelope stuffing — Declaration that s. 32 of no force and
effect and injunction enjoining Public Service Commission
from enforcing it sought — Low profile political activity in
question — Message from Public Service Commissioners
interpreting s. 32 no more binding than interpretation bulletins
under Income Tax Act — Whether Commission acting proper
ly in regulating political and democratic rights by administra
tive guidelines rather than by subordinate law subject to
Parliamentary and judicial scrutiny — Whether definition of
"work" in s. 32 could be clarified by regulation or if judicial
interpretation necessary — Whether proposed activities of
plaintiffs permitted by Charter but denied due to Commis
sion's interpretation of s. 32 — Whether Charter limitation
clause applicable — Principles in Fraser case applicable —
Evidence as to public service statutes and regulations of other
jurisdictions inconclusive as degree of freedom allowed vary
ing — Difficulty of distinguishing between job and non-job
related political activities — Plaintiffs' job ability not
impaired by political activities — Convention of political
neutrality in civil service necessitating restraints on partisan
political activity — Merit principle for appointments and
promotions — Evils of political patronage — Reliance by
ministers on work of public servants — Individual public
servants not discriminated against by s. 32 — Argument that
words "engage in work" void for uncertainty — Words not so
vague as to justify finding entire section of no force and effect
— Necessity for judicial interpretation of what constitutes
engaging in work for party — No more activities to be
restricted than necessary to preserve political neutrality tradi
tion — Questionable that voting as delegate for leader work
for candidate — Public servant not to act for party as polling
station scrutineer — Not to publicly communicate opinion as
to which party having best women's issues policy — Permissi
ble to put questions at all-candidates meetings — Envelope
stuffing, but not canvassing of electors, permissible — Propor
tionality test in Oakes case applied in determining whether
means adopted in s. 32 reasonable and demonstrably justified
for purpose of Charter s. 1 — Maintenance of political neu
trality of public service important objective — Restriction on
political activities reasonable limit demonstrably justified in
democratic society — Public Service Employment Act, R.S.C.
1970, c. P-32, ss. 32, 33 — 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 —
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), s. 52(1).
Constitutional law — Charter of Rights — Fundamental
freedoms — Legislation restricting political activity of public
servants — Prohibited from working for or against candidate
or party — Whether Charter s. 2(b) and 2(d) violated —
Fundamental principle of Canadian Constitution that public
service politically neutral — Confidence of ministers in advice
of public servants on whose work must rely — Legislation
restricting expression of opinion and, to lesser extent, freedom
of association — Words "engage in work" not so vague as to
justify finding entire section of no force and effect — Necessity
for judicial interpretation of what constitutes engaging in work
for party — Court deciding what activity permissible —
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), s. 2(b),(d) — Public Service Employment Act,
R.S.C. 1970, c. P-32, s. 32.
Constitutional law — Charter of Rights — Equality rights
— Legislation limiting political activities of public servants —
Public servant ordered not to attend leadership convention as
delegate — Whether deprivation of Charter right to equal
protection and benefit of law — Charter s. 15(1) inapplicable
— Public Service Employment Act s. 32 not discriminating
against individual public servants — Canadian Charter of
Rights and Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 15
— Public Service Employment Act, R.S.C. 1970, c. P-32, s.
32.
Constitutional law — Charter of Rights — Limitation
clause — Legislation restricting political activities of public
servants — Objective being maintenance of politically neutral
public service — Whether objective of sufficient importance to
justify overriding constitutionally protected rights — Whether
means chosen reasonably and demonstrably justified — Pro
portionality test enunciated by Dickson C.J. in Oakes case —
Impugned legislation saved by Charter s. 1 even if infringing
rights guaranteed by ss. 2(b),(d) or 15 — 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 — Public Service Employment Act, R.S.C. 1970, c.
P-32, s. 32.
Elections — Legislation prohibiting public servants from
working for or against candidate for election or political party
— Whether Charter rights infringed — Impugned legislation
saved by Charter s. 1 — Public servant may stuff envelopes or
attend leadership convention as delegate — May not canvass,
speak in public or represent party as scrutineer — Canadian
Charter of Rights and Freedoms, being Part I of the Constitu
tion Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.), s. 1 — Public Service Employment Act, R.S.C. 1970, c.
P-32, s. 32.
This is an action for a declaration that section 32 of the
Public Service Employment Act is void as contrary to para
graphs 2(b) and (d) and section 15 of the Charter. Subsection
32(1) prohibits public servants from engaging in work for, on
behalf of or against a candidate or political party. Subsection
32(2) provides that a person does not contravene subsection (1)
merely by attending a political meeting or contributing money
to a political party or candidate.
The plaintiffs, with one exception, are federal public ser
vants. Two of them were denied permission to attend the
Liberal leadership convention as. delegates. In the third action,
Cassidy is a Member of Parliament. The other plaintiffs
wanted to work on his behalf in their free time. The activities in
question include canvassing polls, scrutineering, stuffing
envelopes, placing signs and similar acts.
Held, section 32 is valid, but a declaration was made that
certain political activities are permissible thereunder.
Cassidy should not have been joined as a co-plaintiff since he
is only indirectly affected by section 32. Actions invoking the
Charter as grounds for declaring section 32 of the Public
Service Employment Act to be void should be restricted to
public servants directly affected by it. Justice must not only be
done, but must be perceived to be done. In court proceedings,
there must not be any perception that political considerations
enter into the decision.
The same governing principles and reasons expressed for
restrictions in Fraser v. Public Service Staff Relations Board
apply to this case. A balance must be struck between the
employee's freedom of expression and the Government's desire
to maintain an impartial and effective public service.
Voluminous evidence was introduced as to what is done in
other democratic countries so that a comparison could be made
in determining whether the rights set out in other sections of
the Charter can be made subject to reasonable limits prescribed
by law. Such evidence leads to inconclusive results since the
degree of freedom allowed and political traditions vary widely
in different jurisdictions. If such evidence were to be adduced
in every case in which section 1 of the Charter is involved, the
courts would be overwhelmed by massive evidence and unneces
sarily lengthy trials would result.
There is in Canada a convention of political neutrality in the
public service which necessitates the placing of some restraints
on partisan political activity. This conduces to the maintenance
of the merit principle for appointments and promotions as
opposed to the evils of political patronage, and contributes to
public confidence in fair and impartial administration by the
public servants of their duties, and of elected ministers in the
advice of subordinate public servants on whose work they must
rely. A public servant, in entering the public service, should
realize that the political neutrality required will necessarily
result in some curtailment of his partisan political activity, even
if this involves some restriction on freedom of speech or free
dom of association. These restrictions should be as few as
possible and no more than are necessary to attain the objective
of political neutrality. This is what section 32 attempts to do,
although its somewhat general language requires judicial inter
pretation when applied to specific instances of political activity.
Subsection 15(1) of the Charter does not apply. Taking the
public service as a whole as a category of employment for
which some restriction of political activity is necessary, section
32 of the Public Service Employment Act does not discriminate
against any individual public servant even if the word "dis-
crimination" is given an extended meaning beyond the catego
ries specifically referred to in subsection 15(1).
The prohibition in paragraph 32(1)(a) imposes some restric
tions on the plaintiffs' expression of opinion and possibly,
although to a lesser extent, on their freedom of association.
Subsection 32(2), however, moderates this. The words "engage
in work" are not sufficiently vague to justify finding the whole
section to be void. Such a finding would remove all restrictions
on political activity of public servants, when it has been accept
ed that some limitation is desirable and necessary. In the
absence of amending legislation or defining regulations of what
constitutes engaging in work for or on behalf of a political
party, a judicial interpretation is required. Generalizations as to
which political activities section 32 restricts and which it
permits should not be made. As a liberal interpretation is to be
given, no more activities should be restricted than is necessary
to preserve the tradition of political neutrality. A wide range of
activities might be undertaken, but, as was suggested in the
Neil Fraser case, the degree of restraint which must be exer
cised is relative to the position and visibility of the public
servant.
In view of the fact that a public servant's attendance at a
political meeting is permissible, election as a delegate to a
leadership convention does not infringe paragraph 32(1)(a).
The public servant's right to attend political meetings is not
conditional on his remaining silent thereat, but implies a right
to participate in discussion relating to policy development. He
may not, however, make statements to the media, orally or in
writing, of a partisan political nature, thereby directing public
attention to himself as an active supporter of a political party.
The words "engage in work for, on behalf of or against a
political party" are equivalent to "partisan political activity". It
follows that he should not act as a scrutineer for his party at a
polling station.
Freedom to express personal views on public issues is unre
stricted so long as it does not constitute an attack on public
policy as in the Fraser case. But communicating an opinion as
to which party has the best policy (in the instant case, on
women's issues) and working for that party infringes section 32.
Speaking as a member of the public at all-candidates meet
ings and putting questions thereat on general policy is permissi
ble as arising out of the right to attend political meetings.
While the nature of the questions, and the candidate to which
they are directed might imply which party the questioner
supports, it would be an undue restriction on his rights to
prevent him from asking such questions. This is quite different
from making political speeches on behalf of a candidate.
Envelope stuffing and addressing correspondence would
appear to constitute work on behalf of a political party, but it
would be giving too wide an interpretation to subsection 32(1)
to find that this work would be prohibited by it. On the other
hand, distributing election circulars or calling on electors at
their homes on behalf of a candidate would be prohibited by
subsection 32(1), as it might involve discussion of partisan
political views with members of the public.
Having in mind the two central criteria which, according to
R. v. Oakes, should be followed in applying Charter section 1,
maintaining public confidence in the perceived impartiality of
public servants is a sufficiently important objective to justify
the statute imposing a limit on political activities of public
servants, even if this overrides some constitutionally protected
rights. The limitations on Charter rights brought about by the
legislation in question do not offend against the threefold
proportionality test enunciated by Dickson C.J. in the Oakes
case. Section 32 is rationally connected with the objective and
designed to achieve it. It impairs as little as possible the rights
of freedom of thought, belief, opinion and expression of para
graph 2(b) of the Charter and the right to freedom of associa
tion in paragraph 2(d), particularly in light of subsection 32(2)
and paragraph 32(1)(b). Even if section 32 of the Public
Service Employment Act infringes rights of individual public
servants guaranteed by paragraphs 2(b) and (d) or section 15
of the Charter, the provisions 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.
CASES JUDICIALLY CONSIDERED
APPLIED:
Fraser v. Public Service Staff Relations Board, [1985] 2
S.C.R. 455; R. v. Oakes, [1986] 1 S.C.R. 103; MacKay v.
The Queen, [1980] 2 S.C.R. 370; Smith, Kline & French
Laboratories Limited v. Attorney General of Canada,
[1986] 1 F.C. 274; (1985), 7 C.P.R. (3d) 145 (T.D.).
DISTINGUISHED:
Fraser v. Nova Scotia (Attorney General), judgment
dated June 10, 1986, SH 54592, not yet reported; Lusch-
er v. Deputy Minister, Revenue Canada, Customs and
Excise, [1985] 1 F.C. 85; 17 D.L.R. (4th) 503 (C.A.).
CONSIDERED:
R. v. Big M Drug Mart Ltd. et al., [1985] 1 S.C.R. 295;
Re Ontario Public Service Employees Union et al. and
Attorney-General for Ontario (1980), 31 O.R. (2d) 321
(C.A.); United Public Workers v. Mitchell, 330 U.S. 75
(1946).
COUNSEL:
John P. Nelligan, Q.C. and Dougald E.
Brown for plaintiffs Osborne and Millar.
Jeffry House and Patricia File for plaintiffs
Barnhart, Camponi, Cassidy, Clavette and
Stevens.
Duff Friesen, Q.C. and Graham R. Garton for
defendants/respondents.
SOLICITORS:
Nelligan/Power, Ottawa, for plaintiffs
Osborne and Millar.
Jeffry House, Toronto, for plaintiffs Barn-
hart, Camponi, Cassidy, Clavette and Ste-
vens.
Deputy Attorney General of Canada for
defendants/respondents.
The following are the reasons for judgment
rendered in English by
WALSH J.: These three actions were heard
simultaneously by agreement since, although the
facts in each case are necessarily somewhat differ
ent, the relief sought that section 32 of the Public
Service Employment Act is of no force and effect
as being in violation of the Canadian Charter of
Rights and Freedoms [being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)] paragraphs 2(b) and 2(d) is
the same. An agreed statement of facts was filed
for the first two cases, the third relying as to facts
on admissions in the pleadings, and a book of
documents was produced as an exhibit applicable
to all three cases. Subsections (1), (2) and (3) of
section 32 of the Public Service Employment Act,
R.S.C. 1970, c. P-32 read as follows:
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.
In the Osborne case, the evidence disclosed that
he is a federal public servant employed in the
Actuarial Branch of the Department of Insurance
residing in Kars, Ontario, and that he is a member
of the Nepean-Carleton Liberal Association. On or
about April 24, 1984 he was elected by the asso
ciation to be a delegate to the leadership conven
tion of the Liberal Party of Canada to be held in
Ottawa from June 12 to 16, 1984. Shortly after his
election as a delegate he was verbally advised by
his superior, R. M. Hammond, Superintendent of
Insurance, that he would incur a disciplinary
penalty if he did not resign his position as a
delegate and on May 31, 1984, Mr. Hammond
ordered him to resign as a delegate in writing on
the ground that to attend the convention as a
delegate would be to engage in partisan political
activity. On June 5, 1984, Mr. Hammond sent Mr.
Edgar Gallant, Chairman of the Public Service
Commission of Canada, a copy of this letter to Mr.
Osborne. Meanwhile a by-election had been called
in Nepean-Carleton and Mr. Osborne had men
tioned to Mr. Hammond that he was considering
seeking the Liberal nomination for the riding in
which event he would apply to the Public Service
Commission for leave pursuant to section 32 of the
Act. In his letter, Mr. Hammond comments that
Mr. Osborne's objective would be to have his
application for leave approved prior to the leader
ship convention so that he could attend it as a
delegate. On June 6, Mr. Osborne did formally
apply for such leave without pay commencing
June 13.
On June 7, Mr. Osborne wrote a respectful and
reasonable letter to Mr. Hammond disagreeing
with the interpretation that his activities as a
delegate would be incompatible with his employ
ment. He quite frankly points out that one of his
motivations in seeking leave under subsection
32(3) is to allow him the opportunity to participate
in the leadership convention and while he is hope
ful that the Public Service Commission will grant
his application before the leadership convention,
he does not know whether there is sufficient sup
port within the riding for his nomination. He
undertakes not to attend as a delegate unless his
application for leave is granted prior to the latest
moment at which he could register as a delegate,
and in the event that his application is not granted,
he undertakes reluctantly to resign as a delegate.
The Public Service Commission after writing to
its legal advisor indicating that further informa
tion was needed as to the nature of applicant's
work, and advice of the Deputy Head as to wheth
er usefulness in the position he occupied would be
impaired should he become a candidate, and
receiving a letter from Mr. Hammond to the effect
that Mr. Osborne's usefulness in his position would
not be impaired were he to become a candidate,
formally granted the leave of absence without pay
effective at the close of business on June 12, 1984.
On June 22, 1984 Mr. Osborne formally advised
the Chairman of the Public Service Commission in
writing that as a result of numerous discussions
with members of the riding's association and other
persons he concluded there was not sufficient sup
port for his nomination and he would no longer be
seeking it. He requested therefore that his leave be
terminated at the earliest possible moment and
hopefully not later than the end of office hours on
June 25, 1984 on his undertaking not to seek
nomination or to work for or against any political
party or candidate should his leave be terminated.
This request was agreed to and his leave of
absence was duly terminated effective June 27,
1984.
In proceedings instituted on November 6, 1984,
Osborne invokes sections 2 and 15 of the Canadian
Charter of Rights and Freedoms and subsection
32(2) of the Public Service Employment Act seek
ing a declaration that his employer had no author
ity or basis in law to order him not to attend as a
delegate the leadership convention and that he was
unlawfully deprived of this opportunity, and there
by deprived of his right under the Charter to equal
protection and equal benefit of the law.
Plaintiff William James Millar is a federal
public servant employed in Winnipeg, Manitoba,
as a Commerce Officer in the Indian and Inuit
Affairs Branch of the Department of Indian and
Northern Affairs, being a resident of Balmoral,
Manitoba, and a member of the Selkirk-Interlake
Liberal Association. On or about April 25, 1984,
he was elected by it to be a delegate to the
leadership convention of the Liberal Party to be
held in Ottawa from June 12 to 16, 1984. On or
about May 14, 1984, he received written permis
sion from Mr. J. Brown, Regional Director of
Personnel, to attend the leadership convention as a
delegate but on or about June 6, 1984, he received
a further letter written on behalf of J. B. Camp-
bell, Regional Director General of Indian and
Inuit Affairs of the Manitoba region, stating that
as a result of a call he had received from the
Deputy Minister's office as to the legal interpreta
tion of the political activity rights of public ser
vants, Mr. Millar must within 24 hours indicate in
writing that he was no longer a delegate to the
convention or suffer disciplinary action. The letter
apologizes for inconvenience which has been
caused to Mr. Millar. He had originally been
advised by Mr. Brown by letter dated May 10,
1984, acting on the advice of a telex from W. A.
Bernard, Personnel Direction of the Staff Rela
tions and Safety of the Department, that he must
desist from this activity. This initial refusal which
was rescinded by the letter of May 14 stating that
no disciplinary action would be taken as he had
been chosen as a delegate, followed by the abrupt
demand on June 6 that he resign as a delegate,
evidently resulted from further consideration of
the problem at a higher level and may well have
been influenced by the action taken with respect to
Mr. Osborne, in refusing to allow him to be a
delegate. Consistency in policy throughout Canada
would require this. Mr. Millar had taken strong
objection in a letter to Mr. Brown dated April 25,
1984, to a publication circulated by the Public
Service Commission in the February 1984 issue of
DIALOGUE EXPRESS respecting what the Commis
sion's views were as to the political rights of public
servants. Copies of the letter were sent, among
others, to the President of the Liberal Party of
Canada and to some seven Cabinet Ministers.
Again in a very strongly worded letter of June 7,
1984, to the acting Director of Personnel Services
of the Department of Indian and Northern Affairs,
Manitoba region, he reiterates his strong objec
tions and in particular to the 24-hour ultimatum
which was given to him. In this letter however he
advises that he did attend a political meeting the
preceding evening for the purpose of informing his
riding executive that he was forced to resign as a
delegate, stating that he did this under threat and
coercion. In proceedings commenced on October
18, 1985 he too invokes sections 2 and 15 of the
Canadian Charter of Rights and Freedoms and
subsection 32(2) of the Public Service Employ
ment Act seeking a declaration that his employer
had no authority or basis in law to order him not
to attend as a delegate the leadership convention
and a declaration that section 32 of the Public
Service Employment Act is of no force or effect.
In the third action, five plaintiffs are involved
including Michael Cassidy who as a Member of
Parliament is not of course a public servant but at
the time his proceedings were instituted on August
9, 1984 was the candidate of the New Democratic
Party seeking election as Member of Parliament in
the riding of Ottawa Centre. The plaintiffs Barn-
hart, Camponi, Clavette and Stevens all wished to
work on his behalf, after working hours only, in
their free time. Barnhart was employed in the
Department of Indian Affairs and Northern De
velopment and claims that he does not meet the
public in his job which involves monitoring the
environment in the Indian reserves to ensure that
new developments create no environmental haz
ards. Camponi is employed in the Office of Native
Claims, Department of Indian Affairs and North
ern Development. Her job involves historical
research in the archives of the Department and its
predecessor departments with respect to the rela
tions between the Department and specific Indian
bands. In her declaration, she states she is particu
larly concerned with the place of women in the
Canadian society and would like to communicate
her opinion as to which political party has the best
policy on women's issues to her friends and neigh
bours during non-working hours only.
Plaintiff Clavette is employed in the Depart
ment of National Defence as a clerk, his job
entailing the filing of accident reports and prepa
ration of graphs exhibiting trends in the supply of
such items as pens, paper, clothing, etc. He is
President of the Ottawa Labour Council and has a
strong interest in questions concerning the rights
of employees at and away from the workplace. He
would like to speak out on behalf of the political
party of his choice during election periods, and
work for candidates who support positions which
enhance the rights of working people, doing this
during non-working hours only, as well as speaking
out on issues of general policy such as cutbacks of
social services.
Plaintiff Stevens is employed as an archival
assistant in the Public Archives of Canada, Na
tional Map Collection, her work involving acquisi
tion and giving access to maps and cartographic
items in the collection and assisting other
employees to obtain required maps for the public
or for other governmental offices. She wishes to
participate in such activities as envelope stuffing
and addressing of correspondence from her own
home or from the campaign offices of the party
she supports outside of working hours.
With respect to plaintiff Cassidy who was cam
paigning for election in a riding in which there is a
significant number of voters who are public ser
vants, it is his contention that his election cam
paign depends in part upon volunteers who are
willing to canvass polls, scrutineer, stuff envelopes,
place signs and similar acts. When he first became
aware of the Public Service Commission guide
lines, he wrote the Commission requesting that
they be withdrawn and objecting to them but this
was not done. The applicants rely on paragraphs
2(b) and 2(d) of the Canadian Charter of Rights
and Freedoms stating that freedom of association
and speech is violated by section 32 of the Public
Service Employment Act and seek a declaration
that it is of no force and effect, and an injunction
enjoining the Commission from enforcing it.
While the statements of defence are not identi
cal in all cases, defendants plead in general that
the Canadian Charter of Rights and Freedoms has
not been infringed because the activities proscribed
by section 32 of the Public Service Employment
Act are partisan political work for a political party
or candidate but do not infringe upon any persons'
right to associate with any other person or persons
or to assemble peacefully with any other person or
persons. It is pleaded that it is a fundamental
principle of the Canadian Constitution that the
public service be impartial and politically neutral.
Entering into and departure from public service of
Canada involves rights, benefits, obligations and
responsibilities which are matters freely exercised
by choice and apply only during tenure as an
employee. It is contended that the permission
given in subsection 32(2) of the Public Service
Employment Act to public servants to attend
political meetings does not extend to the right to
attend political party leadership conventions as a
delegate. Furthermore, section 15 of the Charter is
not infringed as public servants are not deprived of
equal protection and equal benefit under the law.
It is further pleaded that if any infringement is
found this brings in section 1 of the Charter and
that it is demonstrably justifiable in a free and
democratic society to prescribe reasonable limits
on the freedom of expression of persons who enter
the public service in order to protect the public
interest in having a perfectly neutral public ser
vice. It is contended that the limits prescribed by
section 32 are, under common law and the Chart
er, reasonable having regard to the right of the
Crown as the Government of Canada and as an
employer to ensure that its employees do not act
contrary to its interest and responsibilities, the
desirability of the public service to be seen to
provide loyal and impartial advice and service to
the public and the government of the day, and the
necessity for recruitment and advancement in the
public service being determined on the basis of
merit, tenure not being dependent upon political
partisanship and that the task assigned to the
public service be carried out in a highly skilled
manner and harmony maintained in the work
place.
I have some doubt as to the desirability of
Michael Cassidy, not himself a public servant,
being joined as a co-plaintiff in the third action
since he is only indirectly affected by section 32 of
the Public Service Employment Act by not being
able to engage public servants to work for him
during his election campaign. It would appear
preferable to restrict actions invoking the Charter
as grounds for declaring section 32 of the Public
Service Employment Act to be of no force and
effect to public servants directly affected by it. Mr.
Cassidy has every right, of course, whether as a
Member of Parliament or as an individual to
publicly seek to promote a liberalization of the
political activities permissible for public servants.
It is frequently said however that justice must not
only be done but must be perceived to be done and
it is essential that in court proceedings there
should be no perception that political consider
ations enter in any way into the decision which is
to be reached. The Crown did not seek to have him
struck as a plaintiff from the proceedings however
and since he is not suing alone for alleged infringe
ment of his rights under the Charter and the
action would proceed on the same basis with or
without his participation as a plaintiff, no useful
purpose would have been served by such a motion.
Whether by coincidence or design, and I am
inclined to believe that the former may have
entered into it, these cases all present instances of
what may perhaps be referred to as low profile
political activity and in the first two cases the
activity involved members of the Liberal Party
which has the effect of removing any suggestion
that the liberalization of political rights of public
servants sought in these proceedings is a policy
exclusive to any particular political party.
Reference has already been made to the mes
sage from the Commissioners of the Public Service
of Canada to federal employees published in the
February 1984 edition of DIALOGUE EXPRESS
attempting to interpret section 32, to which strong
objection was taken by plaintiff Millar. While this
message was undoubtedly issued by the Commis
sion with the laudable intention of attempting to
clarify confusion which had arisen in setting the
limitations on the political rights of federal public
servants it can have no legally binding effect any
more than an interpretation bulletin under the
Income Tax Act [S.C. 1970-71-72, c. 63] or other
statutes, useful though it may be. Section 33 of the
Public Service Employment Act permits the Com
mission to make such regulations as it considers
necessary to carry out and give effect to the Act
but this bulletin was not issued as a regulation
which would have to be adopted by Order in
Council. Strong objection was taken to this by the
Standing Joint Committee of the Senate and the
House of Commons on Regulations and Other
Statutory Instruments in a letter written by it on
June 5, 1984, to Edgar Gallant, Chairman of the
Public Service Commission, which stated that the
regulation of a matter as sensitive as the political
and democratic rights of the subject even if under
the guise of interpretative rules is not something
that is properly addressed in administrative guide
lines and that any restriction or authoritative inter
pretation of these rights should be formally
expressed in subordinate law which is then subject
to judicial and Parliamentary scrutiny. The letter
goes on to state:
While we recognize that the applicable limits in this instance
have been prescribed by law, we tend to the view that any
authoritative interpretation of section 32 of the Public Service
Employment Act should also be expressed in a legislative
instrument in order to meet the standards set out in the
Canadian Charter of Rights and Freedoms.
The letter then goes on to discuss the guidelines.
Defendant goes so far as to contend that section
32 could not be clarified even by a regulation duly
issued as the effect of the regulation would be to
define the word "work" as used in section 32
which is a matter for the courts in interpreting
that section or for Parliament to define by amend
ing legislation setting out precisely what is intend
ed by the words "engage in work" in the section.
While it is true that subsection 32(2) does define
certain activities which do not contravene para
graph 32(1)(a) there are a number of other possi
ble activities of a political nature, some examples
of which appear in these cases, for which a deci
sion is necessary as to whether they constitute
engaging in work within the meaning of the section
and this cannot be definitively decided by a mere
bulletin issued by the Public Service Commission,
although undoubtedly management personnel will
be guided by it as they were in prohibiting the
activities exemplified in these cases, unless and
until this is determined by the courts or by valid
regulations.
Three issues have to be decided:
1. Is section 32 of the Public Service Employment
Act of no force or effect by virtue of being in
contravention of paragraphs 2(b) and (d) or sec
tion 15 of the Canadian Charter of Rights and
Freedoms?
2. Do the proposed activities of plaintiffs constitute
activities permitted by those sections but which
they were prevented from engaging in by virtue of
the interpretation given by the Commission to
section 32?
3. In the event that any of these sections of the
Charter are found to have been contravened by the
prohibition of these activities are they nevertheless
activities which can be brought within the "reason-
able limits prescribed by law as can be
demonstrably justified in a free and democratic
society" of section 1 of the Charter?
Certain leading cases of the Supreme Court and
other courts in this country give some guidance
although they were on different issues and not
dealing with political rights of federal public ser
vants and the restriction imposed on them by
section 32 of the Public Service Employment Act.
Three leading cases of the Supreme Court pro
vide some guidance. The first is the case of Fraser
v. Public Service Staff Relations Board, [1985] 2
S.C.R. 455, an action which originated before the
Charter which upheld the suspension and eventual
dismissal of a supervisory employee of Revenue
Canada who openly and unrepentantly attacked
government policies with respect to metrification
and the adoption of the new Constitution, although
neither affected the Department in which he
worked directly. In rendering judgment upholding
the decision of the Adjudicator which had also
been upheld by the Federal Court of Appeal
[[1983] 1 F.C. 372], Chief Justice Dickson stated,
at pages 466 to 468:
The Adjudicator recognized that a balance had to be struck
between the employee's freedom of expression and the Govern
ment's desire to maintain an impartial and effective public
service. He said:
[It is] incumbent upon the public servant to exercise some
restraint in the expression of his views in opposition to
Government policy. Underlying this notion is the legitimate
concern that the Public Service and its servants should be
seen to serve the public in the administration and implemen
tation of Government policies and programs in an impartial
and effective manner. Any individual upon assuming employ
ment with the Public Service knows or ought to be deemed to
know that in becoming a public servant he or she has
undertaken an obligation to exercise restraint in what he or
she says or does in opposition to Government policy. More
over, it is recognized that the exercise of such restraint may
very well be a requirement of employees who work in less
visible sectors of Canadian society.
In other words, a public servant is required to exercise a degree
of restraint in his or her actions relating to criticism of govern
ment policy, in order to ensure that the public service is
perceived as impartial and effective in fulfilling its duties. It is
implicit throughout the Adjudicator's reasons that the degree
of restraint which must be exercised is relative to the position
and visibility of the civil servant.
In my opinion, the Adjudicator was correct in identifying the
applicable principles and in applying them to the circumstances
of the case. The act of balancing must start with the proposi
tion that some speech by public servants concerning public
issues is permitted. Public servants cannot be, to use Mr.
Fraser's apt phrase, "silent members of society". I say this for
three reasons.
First, our democratic system is deeply rooted in, and thrives
on, free and robust public discussion of public issues. As a
general rule, all members of society should be permitted, indeed
encouraged, to participate in that discussion.
Secondly, account must be taken of the growth in recent
decades of the public sector—federal, provincial, municipal—as
an employer. A blanket prohibition against all public discussion
of all public issues by all public servants would, quite simply,
deny fundamental democratic rights to far too many people.
Thirdly, common sense comes into play here. An absolute
rule prohibiting all public participation and discussion by all
public servants would prohibit activities which no sensible
person in a democratic society would want to prohibit. Can
anyone seriously contend that a municipal bus driver should not
be able to attend a town council meeting to protest against a
zoning decision having an impact on her residential street?
Should not a provincial clerk be able to stand in a crowd on a
Sunday afternoon and protest a provincial government decision
cutting off funding for a day care centre or a shelter for single
mothers? And surely a federal commissionaire could speak out
at a Legion meeting to protest against a perceived lack of
federal support for war veterans. These examples, and many
others could be advanced, demonstrate that an absolute prohi
bition against public servants criticizing government policies
would not be sensible.
On the other side, however, it is equally obvious that free
speech or expression is not an absolute, unqualified value.
Other values must be weighed with it. Sometimes these other
values supplement, and build on, the value of speech. But in
other situations there is a collision. When that happens the
value of speech may be cut back if the competing value is a
powerful one. Thus, for example, we have laws dealing with
libel and slander, sedition and blasphemy. We also have laws
imposing restrictions on the press in the interests of, for exam
ple, ensuring a fair trial or protecting the privacy of minors or
victims of sexual assaults.
A similar type of balancing is required in the present appeal.
Public servants have some freedom to criticize the Government.
But it is not an absolute freedom. To take but one example,
whereas it is obvious that it would not be "just cause" for a
provincial Government to dismiss a provincial clerk who stood
in a crowd on a Sunday afternoon to protest provincial day care
policies, it is equally obvious that the same Government would
have "just cause" to dismiss the Deputy Minister of Social
Services who spoke vigorously against the same policies at the
same rally.
At pages 470 - 471 he states:
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 scrutinise
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.
While this case was addressing the issue of
freedom of speech, and not engaging "in work for,
on behalf of, or against a candidate for election"
which is the issue under section 32, the same
governing principles and reasons expressed for re
strictions would apply.
The case of R. v. Big M Drug Mart Ltd. et al.,
[1985] 1 S.C.R. 295, was referred to by plaintiffs
in seeking a broad or purposive interpretation of
the Charter. It dealt with the Lord's Day Act
[R.S.C. 1970, c. L-13] and at page 344, Mr.
Justice Dickson [as he then was] stated:
This Court has already, in some measure, set out the basic
approach to be taken in interpreting the Charter. In Hunter v.
Southam Inc., [1984] 2 S.C.R. 145, this Court expressed the
view that the proper approach to the definition of the rights and
freedoms guaranteed by the Charter was a purposive one. The
meaning of a right or freedom guaranteed by the Charter was
to be ascertained by an analysis of the purpose of such a
guarantee; it was to be understood, in other words, in the light
of the interests it was meant to protect.
In my view this analysis is to be undertaken, and the purpose
of the right or freedom in question is to be sought by reference
to the character and the larger objects of the Charter itself, to
the language chosen to articulate the specific right or freedom,
to the historical origins of the concepts enshrined, and where
applicable, to the meaning and purpose of the other specific
rights and freedoms with which it is associated within the text
of the Charter. The interpretation should be, as the judgment in
Southam emphasizes, a generous rather than a legalistic one,
aimed at fulfilling the purpose of the guarantee and securing
for individuals the full benefit of the Charter's protection. At
the same time it is important not to overshoot the actual
purpose of the right or freedom in question, but to recall that
the Charter was not enacted in a vacuum, and must therefore,
as this Court's decision in Law Society of Upper Canada v.
Skapinker, [1984] 1 S.C.R. 357, illustrates, be placed in its
proper linguistic, philosophic and historical contexts.
The third case to which I refer is that of R. v.
Oakes, [1986] 1 S.C.R. 103, which dealt with the
reverse onus of proof imposed under the Narcotic
Control Act [R.S.C. 1970, c. N-1] resulting from
the possession of a narcotic. The Court found it to
be unconstitutional because it violated the pre
sumption of innocence in paragraph 11(d) of the
Canadian Charter of Rights and Freedoms. In
dealing with the possible application of section 1 of
the Charter, Chief Justice Dickson stated at pages
138-140:
Where evidence is required in order to prove the constituent
elements of a s. 1 inquiry, and this will generally be the case, it
should be cogent and persuasive and make clear to the Court
the consequences of imposing or not imposing the limit. See:
Law Society of Upper Canada v. Skapinker, supra, at p. 384;
Singh v. Minister of Employment and Immigration, supra, at
p. 217. A court will also need to know what alternative
measures for implementing the objective were available to the
legislators when they made their decisions. I should add, how
ever, that there may be cases where certain elements of the s. 1
analysis are obvious or self-evident.
To establish that a limit is reasonable and demonstrably
justified in a free and democratic society, two central criteria
must be satisfied. First, the objective, which the measures
responsible for a limit on a Charter right or freedom are
designed to serve, must be "of sufficient importance to warrant
overriding a constitutionally protected right or freedom": R. v.
Big M Drug Mart Ltd., supra, at p. 352. The standard must be
high in order to ensure that objectives which are trivial or
discordant with the principles integral to a free and democratic
society do not gain s. 1 protection. It is necessary, at a
minimum, that an objective relate to concerns which are press
ing and substantial in a free and democratic society before it
can be characterized as sufficiently important.
Second, once a sufficiently significant objective is recognized,
then the party invoking s. 1 must show that the means chosen
are reasonable and demonstrably justified. This involves "a
form of proportionality test": R. v. Big M Drug Mart Ltd.,
supra, at p. 352. 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., supra, 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".
With respect to the third component, it is clear that the
general effect of any measure impugned under s. 1 will be the
infringement of a right or freedom guaranteed by the Charter;
this is the reason why resort to s. 1 is necessary. The inquiry
into effects must, however, go further. A wide range of rights
and freedoms are guaranteed by the Charter, and an almost
infinite number of factual situations may arise in respect of
these. Some limits on rights and freedoms protected by the
Charter will be more serious than others in terms of the nature
of the right or freedom violated, the extent of the violation, and
the degree to which the measures which impose the limit trench
upon the integral principles of a free and democratic society.
Even if objective is of sufficient importance, and the first
two elements of the proportionality test are satisfied, it is still
possible that, because of the severity of the deleterious effects
of a measure on individuals or groups, the measure will not be
justified by the purposes it is intended to serve. The more severe
the deleterious effects of a measure, the more important the
objective must be if the measure is to be reasonable and
demonstrably justified in a free and democratic society.
It deals primarily with section 1 of the Charter
which must be considered if it is found that section
32 of the Public Service Employment Act conflicts
with section 15 or paragraphs 2(b) or (d) of the
Charter.
Voluminous and thoroughly prepared briefs, to
gether with extensive volumes of jurisprudence,
statutes from other jurisdictions, extracts from
textbooks and papers presented by learned authori
ties both in this country and elsewhere were pro
duced, and a number of expert witnesses were
heard who gave their opinion evidence. Much of
this was in connection with the interpretation of
section 1 with respect to which the Supreme Court
appears to be of the view that evidence will, in
most cases, be required as to what is done in other
free and democratic societies so that a comparison
can be made to determine whether the rights and
freedoms set out in other sections of the Charter
can be made subject to reasonable limits pre
scribed by law (see for example Oakes case,
supra). As a result, evidence was adduced respect
ing the public service employment statutes and
regulations of all 10 provinces of Canada, of Aus-
tralia, France, West Germany, Japan, New Zea-
land, Sweden, Switzerland, United Kingdom and
the United States as well as reports of studies of
reform committees, joint committees of the Senate
and the House of Commons, task forces and com
missions in said jurisdictions. Such evidence leads
to inconclusive results since the degree of freedom
allowed appears to vary widely in the different
jurisdictions referred to. Moreover political tradi
tions vary from country to country. I feel consider
able concern that if such evidence is to be adduced
in every case in which section 1 of the Charter is
involved, the courts will be overwhelmed by mas
sive evidence, often conflicting, and resulting in
unnecessarily lengthy trials and bulky records.
On the issue of the interpretation of section 32
of the Public Service Employment Act in the light
of sections 2 and 15 of the Charter however, while
great respect is due to the opinions expressed by
the experts and the writings of learned authorities,
it is the function of the Court to interpret the law
as it reads and not to be led into any philosophical
considerations as to what may or may not be
desirable. Only Parliament can change the law and
our courts must always be vigilant not to attempt
to extend it by way of judicial interpretation
beyond what Parliament appears to have intended.
It is difficult to draw a clear line between job
related and non-job related criticism or political
activities. In the Fraser case (supra) the Chief
Justice stated, at pages 468-469:
A job in the public services has two dimensions, one relating to
the employee's tasks and how he or she performs them, the
other relating to the perception of a job held by the public.
Dealing with the question of job impairment he
stated, at pages 472 to 473:
As to impairment to perform the specific job, I think the
general rule should be that direct evidence of impairment is
required. However, this rule is not absolute. When, as here, the
nature of the public servant's occupation is both important and
sensitive and when, as here, the substance, form and context of
the public servant's criticism is extreme, then an inference of
impairment can be drawn. In this case the inference drawn by
the Adjudicator, namely that Mr. Fraser's conduct could or
would give rise to public concern, unease and distrust of his
ability to perform his employment duties, was not an unreason
able one for him to take.
Turning to impairment in the wider sense, I am of opinion
that direct evidence is not necessarily required. The traditions
and contemporary standards of the public service can be mat
ters of direct evidence. But they can also be matters of study, of
written and oral argument, of general knowledge on the part of
experienced public sector adjudicators, and ultimately, of
reasonable inference by those adjudicators. It is open to an
adjudicator to infer impairment on the whole of the evidence if
there is evidence of a pattern of behaviour which an adjudicator
could reasonably conclude would impair the usefulness of the
public servant.
In the present cases there is no suggestion that
any of plaintiffs in question suffered any impair
ment in their ability to do their job as a result of
the activities which they had undertaken or intend
ed to undertake. In fact plaintiff Osborne subse
quently received a promotion and this despite a
change in Government with the party he had
supported being defeated. Moreover the issue of
job impairment is only raised in subsection (3) of
section 32 dealing with granting leave to a public
servant to be a candidate for election.
In contending that there has been no discrimina
tion against plaintiffs in contravention of section
15 of the Charter reference was made to the case
of MacKay v. The Queen, [1980] 2 S.C.R. 370,
where at page 406, Mr. Justice McIntyre stated:
It seems to me that it is incontestable that Parliament has
the power to legislate in such a way as to affect one group or
class in society as distinct from another without any necessary
offence to the Canadian Bill of Rights. The problem arises
however when we attempt to determine an acceptable basis for
the definition of such a separate class, and the nature of the
special legislation involved. Equality in this context must not be
synonymous with mere universality of application. There are
many differing circumstances and conditions affecting different
groups which will dictate different treatment. The question
which must be resolved in each case is whether such inequality
as may be created by legislation affecting a special class—here
the military—is arbitrary, capricious or unnecessary, or wheth
er it is rationally based and acceptable as a necessary variation
from the general principle of universal application of law to
meet special conditions and to attain a necessary and desirable
social objective.
Mr. Justice Strayer in the case of Smith, Kline
& French Laboratories Limited v. Attorney Gen
eral of Canada, [1986] 1 F.C. 274; (1985), 7
C.P.R. (3d) 145 (T.D.), at pages 318-319 F.C.; at
page 194 C.P.R. stated:
I do not think it could have been the intention that every
distinction drawn by legislation between citizens or classes of
citizens should automatically be regarded as "discrimination"
within subsection 15(1) and thus immediately cause a shift in
onus to a defender of the legislation to justify it under section I.
It is the business of legislatures to make distinctions for a
myriad of reasons and it is inconceivable that every one of these
should place on the government, or on any one else relying on
such legislation, the onus of showing that it is "justified in a
free and democratic society". This would shift to the courts a
decisional right and burden which would be unacceptable both
to them and the legislatures.
It is common ground that there is a convention
of political neutrality in the civil service.
In the Ontario case of Re Ontario Public Ser
vice Employees Union et al. and Attorney-General
for Ontario (1980), 31 O.R. (2d) 321, the Ontario
Court of Appeal after referring to the quotation of
the MacDonnell Commission (set out supra in the
Fraser case) states, at page 330:
The Masterman Committee, in its summary of conclusions,
stated that "the political neutrality of the Civil Service is a
fundamental feature of British democratic government and is
essential for its efficient operation. It must be maintained even
at the cost of some loss of political liberty by certain of those
who elect to enter the Service." A subsequent committee on the
subject in the United Kingdom (the Armitage Committee)
reported in the same fashion in 1978.
Clearly there was a convention of political neutrality of
Crown servants at the time of Confederation and the reasoning
in support of such convention has been consistent throughout
the subsequent years. Whether it was honoured fully at that
time in practice is irrelevant. The consideration is, as stated
earlier, not as to the social desirability of the legislation but
rather the fact that historically there was such a convention
existing in 1867.
Kenneth Kernaghan, Professor of political
science and administration of Brock University
and the author of many publications on the politi
cal rights of civil servants, testified as an expert for
defendant. Dealing with the question of political
neutrality of the public service, he sets out six
major principles:
I. Politics and policy are separated from administration so that
politicians make policy decisions and public servants simply
execute these decisions.
2. Public servants are appointed and promoted on the basis of
merit rather than affiliation with or contributions to a political
party.
3. Public servants do not engage in partisan political activity.
4. Public servants do not express publicly their views on govern
ment policies or administration.
5. Public servants provide advice to their ministers in private
and in confidence and, in return, ministers protect the anonymi
ty of public servants by publicly accepting responsibility for
departmental actions.
6. Public servants execute policy decisions loyally irrespective
of the philosophy and programs of the governing party and of
their personal opinions; as a result, public servants enjoy secu
rity of tenure during good behaviour and satisfactory
performance.
He states that they are inter-dependent so an
alteration of one can have an important effect on
the others. In general these were agreed to be
sound principles by the other experts although
sometimes of necessity departed from, such as in
the case of direct Cabinet appointments especially
in technical fields where specific individual talents
must be sought out rather than appointments
made by merit alone. Further exceptions are the
cases of public servants who by the nature of their
job are required to express their views, for example
the head of the Women's Labour Bureau, an
example given by the expert witness Whittaker.
It is also of interest to note what was said in the
United States Supreme Court in the case of United
Public Workers v. Mitchell, 330 U.S. 75 (1946),
at page 102:
Congress has determined that the presence of government
employees, whether industrial or administrative, in the ranks of
political party workers is bad. Whatever differences there may
be between administrative employees of the government and
industrial workers in its employ are differences in detail so far
as the constitutional power under review is concerned. Whether
there are such differences and what weight to attach to them,
are all matters of detail for Congress. We do not know whether
the number of federal employees will expand or contract;
whether the need for regulation of their political activities will
increase or diminish. The use of the constitutional power of
regulation is for Congress, not for the courtt.
We have said that Congress may regulate the political
conduct of government employees "within reasonable limits,"
even though the regulation trenches to some extent upon unfet
tered political action. The determination of the extent to which
political activities of governmental employees shall be regulated
lies primarily with Congress. Courts will interfere only when
such regulation passes beyond the generally existing conception
of governmental power. That conception develops from prac
tice, history, and changing educational, social and economic
conditions.
A recent case in Nova Scotia, that of Fraser v.
Nova Scotia (Attorney General), bearing the
number SH 54592, in which the judgment was
issued on June 10, 1986, long after the present
case was pleaded is of considerable interest since it
deals directly with political rights of civil servants
in that province. It can best be conveniently
referred to as the Frank Fraser case to distinguish
it from the Supreme Court case of Neil Fraser to
which reference has already been made. In it Mr.
Justice Grant made a very thorough examination
of the rights of civil servants under the Civil
Service Act of Nova Scotia, S.N.S. 1980, c. 3, and
whether subsections 34(2) and (3) and paragraph
35(c) of it is inconsistent with the rights guaran
teed by sections 2, 3, and 15 of the Canadian
Charter of Rights and Freedoms, and hence of no
force and effect. The judgment examined state
ments by leading constitutional authorities and the
leading jurisprudence including the cases of R. v.
Big M Drug Mart Ltd. et al., R. v. Oakes, and
Fraser v. Public Service Staff Relations Board, to
which I have referred. It incorporated tables giving
a comparative analysis of regulations of political
activity in Canada, in the various provinces there
of, and also discussed the position in Great Britain
including the Masterman report, the United States
including the Hatch Act [An Act to prevent perni
cious political activities, 53 Stat. 1147], and dealt
at considerable length on the expert opinions
expressed by Professor Kernaghan, who was also a
witness in the present case.
The learned Justice expressed his views on the
effect of the Charter on various activities, includ
ing speaking at political meetings, attending meet
ings, membership fees, contributions to a political
party, candidature, posters and signs, canvassing,
radio and television appearances, drafting policies,
soliciting funds, holding office in party organiza
tion, and the possibility of establishing categories
to which certain restrictions would apply as is done
in England. In conclusion he found that subsec
tions 34(2) and (3) and paragraph 35(c) of the
Nova Scotia Act infringe upon and thereby are
inconsistent with the rights of the applicants guar
anteed by paragraphs 2(b), 2(c), 2(d), section 3
and subsection 15 (1) of the Charter of Rights and
Freedoms, and hence by virtue of subsection 52(1)
of the Constitution Act, 1982 [Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)] are of no
force and effect. He withholds the implementing of
his decision, however, pending an appeal if any.
In dealing with the findings of this judgment
however, it must be pointed out that the sections in
question of the Civil Service Act of Nova Scotia
are considerably more restrictive than section 32
of the Canadian Public Service Employment Act
which is being dealt with in this case. The sections
in question read as follows:
34 ...
(2) No Deputy Head or employee shall engage in partisan
work in connection with any such election or contribute, receive
or in any way deal with any money for any party funds.
(3) Any person who violates this Section is subject to dismis
sal from the Civil Service.
35 An employee, other than a Deputy Head or employee in a
position or classification designated in the regulations, may be a
candidate for election to any elective municipal office, includ
ing a school board, or actively work in support of a candidate
for such office if
(a) the candidacy, service or activity does not interfere with
the performance of the employee's duties;
(b) the candidacy, service or activity does not conflict with
the interests of Her Majesty in the right of the Province; or
(c) the candidacy, service or activity is not affiliated with or
sponsored by a Federal or Provincial political party.
In Frank Fraser's affidavit he submitted that
because of this Act he was unable to do the
following:
(1) Be a member of a provincial and/or federal political party;
(2) Associate with members of that party in their party
activities;
(3) Attend meetings and assemblies of that party;
(4) Participate in developing policies and platforms of that
party;
(5) Express publicly his views on political issues;
(6) Contribute financially to that party;
(7) Canvass on behalf of that party;
(8) Campaign for that party;
(9) Seek nomination as a candidate for that party in a provin
cial or federal general election and if nominated, to run for
office.
It will be readily seen that because of subsection
32(2) of the Canadian statute, numbers 1, 2, 3 and
6 are not applicable and because of subsection (3)
number 9 does not apply.
Before dealing specifically with the issues to be
decided in the present case a mention might be
made of what has been done in Great Britain
where the public service is divided into three
groups for the purpose of political activity, which
groups are composed as follows:
1. The politically free group, consisting of industrial and non-
office grades, who are free to engage in any political activity
including standing for Parliament (although they would have to
resign from the service if elected).
2. The politically restricted group, consisting of all staff above
Executive Officer level, together with Executive Officers, and
certain related grades such as Information Officers, who are
debarred from national political activities, but may apply for
permission to take part in local political activities.
3. The intermediate group, comprising all other staff, mainly
the clerical and typing grades, who may apply for permission to
take part in national or local political activity, but may not be a
candidate for election to Parliament.
Witnesses indicated that this appears to work in a
satisfactory manner. There is no such classification
in Canada however and it is not a proper function
for the Court to suggest whether such a classifica
tion would be desirable for Canada or not, and in
fact such a division within the public service might
itself possibly be in conflict with section 15 of the
Charter in that it would discriminate between the
rights of one category of public servant and those
of others.
In any event, I believe that it must be accepted
that there is in Canada as well as in Great Britain,
the United States and other democratic countries,
a convention of political neutrality in the public
service which necessitates the placing of some
restraints on partisan political activity. This con
duces to the maintenance of the merit principle for
appointments and promotions as opposed to the
evils of political patronage, and contributes to
confidence of the public in fair and impartial
administration by the public servants of their
duties, and of elected ministers in the advice of
subordinate public servants on whose work they
must rely. While considerable time was devoted in
argument to the possible adverse consequences to
the individual public servant himself if he or she
enters into partisan political activity, this argu
ment failed to impress me. A public servant in
entering the public service must or should realize
that the political neutrality required will necessari
ly result in some curtailment of his or her partisan
political activity even if this involves some restric
tion on freedom of speech or freedom of associa
tion. These restrictions should be as few as possible
and no more than are necessary to attain the
objective of political neutrality, and this is what
section 32 attempts to do although the somewhat
general language of it requires some judicial inter
pretation when applied to specific instances of
political activity. Looked at from the point of view
of the individual public servant who wishes to
engage in active partisan political activity, it
appears to me that it is not only the consequences
of a possible breach of the statute which he has to
fear but also the effect that his activities will have
on his superiors and his chances of advancement or
promotion. The same might be said of styles of
dress, length or colour of hair, use of vulgar lan
guage, or other personal characteristics, all of
which may be permissible under the Charter of
Rights but will certainly affect the attitudes of his
or her superiors and co-workers towards him or
her. If an employee, whether in the public service
or in private industry, persists in a course of
conduct of which, although perfectly legal, his
employer does not approve he has chosen to suffer
the consequences. It is for that reason that I give
little weight to this argument but rather stress the
importance of maintenance of the convention of
political neutrality in the public service for the
benefit of the public service as a whole and main
tenance of the merit principle, and confidence of
the public and of the various ministers whom the
public servants must serve.
It will be convenient here to refer to the sections
of the Charter in question:
15. (1) Every individual is equal before and under the law
and has the right to the equal protection and equal benefit of
the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
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.
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.
It does not appear to me that subsection 15(1)
can have any application on the facts of this case.
Taking the public service as a whole as a category
of employment for which some restriction of politi
cal activity is necessary, section 32 of the Public
Service Employment Act does not discriminate in
any way against any individual public servant as to
the application of the law to him or her, even if the
word "discrimination" is given an extended mean
ing beyond the categories specifically referred to in
the said subsection 15(1). (See in this connection
the quotations from judgments of Mr. Justice
McIntyre in the case of Private R.C. MacKay and
Mr. Justice Strayer in the case of Smith, Kline &
French Laboratories Limited (supra))
If plaintiffs are to succeed in their primary
objective of having section 32 found to be of no
force or effect as being inconsistent with the
Charter by application of subsection 52(1) of the
Constitution Act, 1982, they must, I believe, rely
on paragraphs 2(b) or (d). Certainly the prohibi
tion of paragraph 32(1)(a) from engaging in work
for, on behalf of or against a political party or
candidate for election, imposes some restrictions
on their expression of opinion and possibly
although to a lesser extent on their freedom of
association. However subsection (2) moderates this
by permitting attendance at a political meeting
and contributing money for the funds of a candi
date or a political party.
Plaintiffs submit that the words "engage in
work" in subsection 32(1) are sufficiently vague as
to justify a finding that the section must be of no
force or effect as being contrary to the Charter,
placing reliance on the case of Luscher v. Deputy
Minister, Revenue Canada, Customs and Excise,
[1985] 1 F.C. 85; 17 D.L.R. (4th) 503 (C.A.) in
which Mr. Justice Hugessen rendering the judg
ment of the Federal Court of Appeal stated, at
pages 89-90 F.C.; at page 506 D.L.R.:
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.
That case however was dealing with the always
difficult question of defining what is "immoral" or
"indecent". It was held that a section of the Cus
toms Tariff [R.S.C. 1970, c. C-41] prohibiting
importation of books of this nature infringes para
graph 2(b) of the Charter as it is not a reasonable
limit as provided for in section 1 because it is too
vague, ambiguous, uncertain or subject to discre
tionary determination and therefore could not be a
reasonable limit. On the facts of the present case I
do not find that the words "engage in work" are
sufficiently vague to the same extent as to justify
finding the entire section to be of no force and
effect. Such a finding would have the consequence
of removing all restrictions on political activity of
public servants when it has been accepted that
some limitation is desirable and necessary. What is
required is a judicial interpretation, in the absence
of amending legislation or defining regulations
adopted by Order in Council, of what constitutes
engaging in work for or on behalf of a political
party.
It is therefore now necessary to consider wheth
er the proposed activities of the plaintiffs consti
tute activities which are permissible under the
Charter but which were restricted by the interpre
tation given by the Commission to section 32. In
giving a judicial interpretation to section 32 of the
Public Service Employment Act it is not my inten
tion to attempt to generalize as to which political
activities it restricts and which activities are per
mitted. As a liberal interpretation is to be given no
more activities should be restricted than is neces
sary to preserve the tradition of political neutral
ity. There is a wide range of activities which might
be indulged in, and as was suggested in the Neil
Fraser case, the degree of restraint which must be
exercised is relative to the position and visibility of
the public servant. I will confine my findings
therefore to the facts in the actions before me as a
more generalized finding would be obiter.
In the case of Osborne he was evidently an
active member of the Liberal Association in his
riding to the extent that he was chosen as a
delegate to the leadership convention. By subsec
tion 32(2) he is entitled to attend political meet
ings or contribute money for the funds of a candi
date or of the party. When he was told that he
could not be a delegate he ingeniously got around
the problem by invoking paragraph 32(1)(b) of the
Act and applying for leave to become a candidate.
When he obtained the necessary permission he was
then able to participate in the leadership conven
tion. While the person to be chosen as leader of the
party would undoubtedly be a candidate for elec
tion in due course, I question whether voting as a
delegate for the choice of such leader is necessarily
work for or on behalf of a candidate. If Mr.
Osborne had subsequently worked for the person
chosen as candidate in the by-election in his con
stituency this would clearly be in contravention of
paragraph 32(1)(a) but on a broad and generous
interpretation of his rights under paragraph 2(b)
of the Charter and in view of the fact that he could
certainly have attended the political meeting with
out being a delegate I do not find that his election
as a delegate to the leadership convention infringes
paragraph 32(1) (a) of the Act.
William James Millar is more militant. In his
case he was at first advised that it would be in
order for him to become a delegate and then this
permission was later rescinded, which emphasizes
the need for judicial determination of this issue.
The same finding made in the Osborne case will be
applied to him.
With respect to plaintiff Cassidy he was
undoubtedly restricted in his desire to employ
public servants to work in one capacity or another
in connection with his election campaign. It was
argued that this interfered with his freedom of
association with them and hence infringed para
graph 2(d) of the Charter. However I believe it
preferable to consider this question on the basis of
whether it was not their rights of association with
him by way of working in connection with his
campaign which were infringed. The result is the
same. If B's right of association with A is unduly
restricted by section 32 it necessarily follows that
A's right of association with B is similarly
infringed.
I now turn to his four co-plaintiffs who are
examples of public servants in his constituency
who consider that their Charter rights have been
infringed.
Plaintiff Barnhart indicates that he would like
to participate in election campaigns as a scrutineer
for the party of his choice at designated polling
places and to assist that party in the development
of industrial policy and general policy. His
employment involves monitoring environment in
Indian reserves and making reports and recom
mendations to Departmental officials as to the
appropriate way to deal with the issues which have
an effect on socio-economic consequences for the
Indians. There is no suggestion that his ability to
perform his work would be impaired, but as I have
already stated, that is not an issue in any of these
cases. Subsection 32(2) specifically permits him to
attend political meetings and contribute money for
candidates and it is reasonable to conclude that his
right to attend political meetings does not require
that he shall remain silent at them but rather
implies a right to participate in discussion relating
to the development of policies if he wishes. What
he may not do is to make any public statements to
the media orally or in writing of a partisan politi
cal nature, thereby directing public attention to
himself as being an active supporter of a given
political party. Although section 32 does not use
the words "partisan" it appears to me that the
words "engage in work for, on behalf of or against
a political party" are equivalent to "partisan politi
cal activity". It follows that he should not act as a
scrutineer for the party of his choice at a polling
station.
Plaintiff Camponi works in the Office of Native
Claims, Department of Indian Affairs and North
ern Development, which involves historical
research in connection with the analysis of claims
against the Crown submitted by natives and makes
proposals for the settlement of them. She states
that she is particularly concerned with the place of
women in Canadian society and would like to
communicate her opinion as to which political
party has the best policy on women's issues to her
friends and neighbours including the carrying out
of this work during non-election periods to ensure
that policies favourable to women are adopted and
brought to the attention of the public. Her rights
to freedom of speech on this and other issues are of
course protected by paragraph 2(b) of the Charter
and she can make all the speeches she wants on
women's rights outside working hours. It is how
ever when she states that she would like to com
municate her opinion as to which political party
has the best policy on women's issues and to work
for that party that she infringes section 32. This is
undoubtedly engaging in work on behalf of a
political party. Her freedom to express her person
al views on public issues is unrestricted (unless of
course this constitutes a strident public attack on
public policy or programs as in the Neil Fraser
case), but in expressing such opinions in public she
should not identify herself as supporting them on
behalf of any given political party.
Plaintiff Clavette is even less visible to the
public in his work than any of the other plaintiffs
but is politically active as President of the Ottawa
Labour Council and as such has strong views
concerning the rights of employees at and away
from their workplace. He wishes to speak out on
behalf of the political party of his choice during
election periods and work for candidates who sup
port positions which enhance the rights of working
people and also to speak publicly on questions of
general policy especially at all-candidates meet
ings. Here again, as in the case of plaintiff Cam-
poni, he is free to express his views on issues of
interest to him whether publicly or privately out
side of working hours but when he wishes to select
a political party which in his opinion best expresses
his views and to work for it in election campaigns
in such a manner as to identify himself publicly as
a member of that party, then he is infringing
section 32 of the Act. As to speaking as a member
of the public at all-candidates meetings and ques
tioning them on questions of general policy this
would appear to be permissible as arising out of his
right to attend political meetings. While the nature
of his questions, and the candidate to which they
are directed might well imply which party he
supports it would in my view be an undue restric
tion on his rights to prevent him from asking such
questions. This is quite a different matter from
making political speeches on behalf of a candidate.
Finally, plaintiff Stevens as an archival assistant
may well have more communication with the
public then the other plaintiffs but this is not the
primary issue. She states she would like to work
for the party of her choice as a volunteer during
the election campaign and afterwards, and partici
pate in such activities as envelope stuffing and
addressing correspondence. While this would
appear to constitute work on behalf of a political
party, it would in my view be giving too wide an
interpretation to subsection 32(1) to find that this
work would be prohibited by it. Distributing elec
tion circulars or calling on electors at their homes
on behalf of a given candidate would be a different
matter altogether. This may well involve discussion
of partisan political views with a member of the
public so approached, but merely stuffing
envelopes or addressing letters for mailing would
not direct public attention to herself as working on
behalf of a given political party and might even, if
she were being paid for it, be merely a means of
earning some spare-time money without caring for
which party she was doing it.
The leading case on the application of section 1
of the Charter, the proper application of which
was dealt with at some length by all parties, is the
Oakes case in which Chief Justice Dickson at
pages 138-139 in the passages quoted (supra)
dealt with the principles to be followed in applying
section 1. He stated that there are two central
criteria, the first being that the objectives must be
of sufficient importance to warrant overriding con
stitutionally protected rights or freedoms and that
for such a finding the standard must be high to
ensure that objectives which are trivial or discord
ant with the principles integral to a free and
democratic society do not gain protection. The
second criterion is to the effect that after a suf
ficiently significant objective is recognized it must
be shown that the means chosen are reasonably
and demonstrably justified and this involves a
proportionality test which will vary depending on
the circumstances, with the courts being required
to balance the interests of society with those of
individuals and groups.
Since it is not seriously disputed that some limit
must be placed on political activities of civil ser
vants to maintain public confidence in their per
ceived impartiality in carrying out government
policies it would appear that this is a sufficiently
important objective to justify the statute imposing
some such limit, even if of necessity this will
override to some extent some constitutionally pro
tected rights and freedoms protected by the
Charter.
In order to decide whether the second criterion
has been met it must be shown that the means
adopted in section 32 are reasonable and
demonstrably justified by application of a propor
tionality test.
For the proportionality test Chief Justice Dick-
son set out three components [at pages 139-140]:
(1) The measures adopted must be carefully
designed to achieve the objective in question. They
must not be arbitrary, unfair or based on irrational
considerations. They must be rationally connected
to the objective.
(2) The means, even if rationally connected to the
objective should impair "as little as possible" the
right or freedom in question.
(3) 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 "suffi-
cient importance".
The more severe the deleterious effects of a meas
ure, the more important the objective must be if
the measure is to be reasonable and demonstrably
justified in a free and democratic society.
Dealing with these components I do not find
section 32 as a whole to be arbitrary or unfair or
based on irrational considerations but rather that
it is rationally connected with the objective and
designed to achieve it. With respect to the second
component I believe it is fair to say that the section
impairs as little as possible the rights of freedom of
thought, belief, opinion and expression of para
graph 2(b) of the Charter and the right to freedom
of association in paragraph 2(d). In this connec
tion, although the section was adopted long before
the Charter, it is significant that subsection (2)
permits a public servant to attend a political meet
ing or contribute money to a candidate for election
or to the funds of a political party and paragraph
(1) (b) permits him to be a candidate for election
subject only to the provisions of subsection (3)
which again do not appear to be unreasonable. All
that is restricted is engaging in work for or on
behalf of or against a candidate for election or a
political party and without some such restriction
there would be nothing left to preserve the tradi-
tion of political neutrality referred to by Chief
Justice Dickson in the Neil Fraser case (supra) as
a Canadian tradition.
It is only the third component therefore which
remains to be considered to the effect that the
more severe the deleterious effects of the Act are
in restricting Charter rights the more important
the objective must be if it is to be deemed reason
able and demonstrably justified in a free and
democratic society. On this question I would also
sustain section 32 of the Act by application of
section 1 of the Charter. The maintenance of
political impartiality in the public service is a very
important objective and has been so recognized by
all the authorities and jurisprudence. If in order to
attain this objective legislation is passed which
limits to some extent political activity of public
servants, the objective outweighs this limitation. In
the Neil Fraser case, Chief Justice Dickson deal
ing with the issue of unrestrained public speech
stated [at page 466] (supra):
Any individual upon assuming employment with the Public
Service knows or ought to be deemed to know that in becoming
a public servant he or she has undertaken an obligation to
exercise restraint in what he or she says or does in opposition to
Government policy.
Although that case did not deal with partisan
political activity and was a pre-Charter case, it
appears to me that this dictum has valid applica
tion in the present actions. In the same judgment
after quoting with approval statements made by
the MacDonnell Commission, in Great Britain,
Chief Justice Dickson states [at page 471]:
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.
To conclude therefore I find that even if section
32 of the Public Service Employment Act
infringes rights of individual public servants guar
anteed by paragraphs 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.
On the question of costs plaintiffs Bryan
Osborne and William James Millar, represented
by the same counsel have succeeded in part in
their actions by obtaining a declaration that they
should have been entitled to attend a leadership
convention as delegates, but have failed in their
attempt to have section 32 of the Public Service
Employment Act declared to be of no force or
effect. I will however award costs to them, one set
of counsel fees and preparation costs only being
allowed, applicable to both cases.
In the case of Randy Barnhart, Linda Camponi,
Michael Cassidy, Ken Clavette and Heather Ste-
vens, represented by different counsel, the plain
tiffs have only succeeded to a limited extent in
obtaining a declaration setting out which of the
proposed activities that they would like to under
take are permissible under section 32 of the Act
and which are not, but have failed to have the
section declared to be of no force or effect as being
in contravention of the Charter, and also with
respect to the second issue (which was raised in all
cases) as to the application of section 1 of the
Charter if it became necessary to consider it.
Success being divided there will be no order as to
costs.
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.