Osborne v. Canada (Treasury Board)

Osborne v. Canada (Treasury Board)
Collection
Supreme Court Judgments
Date
1991-06-06
Report
[1991] 2 SCR 69
Case number
21201, 21202, 21203
Judges
Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Cory, Peter deCarteret; McLachlin, Beverley; Stevenson, William
On appeal from
Federal Court of Appeal
Subjects
Constitutional law
Notes
SCC Case Information: 21201, 21202, 21203
Decision Content
Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69
The Public Service Commission Appellant
v.
William James Millar Respondent
and
The Attorney General of Quebec,
the Attorney General for Saskatchewan
and the Attorney General of Newfoundland Interveners
and between
The Public Service Commission Appellant
v.
Bryan Osborne Respondent
and
The Attorney General of Quebec,
the Attorney General for Saskatchewan
and the Attorney General of Newfoundland Interveners
and between
The Public Service Commission Appellant
v.
Randy Barnhart, Linda Camponi,
Michael Cassidy, Ken Clavette and
Heather Stevens Respondents
and
The Attorney General of Quebec,
the Attorney General for Saskatchewan
and the Attorney General of Newfoundland Interveners
Indexed as: Osborne v. Canada (Treasury Board)
File Nos.: 21201, 21202, 21203.
1990: October 11; 1991: June 6.
Present: Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Cory, McLachlin and Stevenson JJ.
on appeal from the federal court of appeal
Constitutional law ‑‑ Constitutional convention ‑‑ Political neutrality of Public Service employees ‑‑ Whether statutory provision implementing constitutional convention can be inconsistent with Constitution? ‑‑ Canadian Charter of Rights and Freedoms, s. 2 (b) ‑‑ Public Service Employment Act, R.S.C., 1985, c. P‑33, s. 33 .
Constitutional law ‑‑ Charter of Rights ‑‑ Freedom of expression ‑‑ Public Service ‑‑ Political partisanship ‑‑ Federal legislation prohibiting public servants from engaging in work for or against a political party or candidate ‑‑ Whether legislation infringes s. 2 (b) of Charter ‑‑ If so, whether legislation justifiable under s. 1 of Charter ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b) ‑‑ Public Service Employment Act, R.S.C., 1985, c. P‑33, s. 33 .
Constitutional law ‑‑ Charter of Rights ‑‑ Reasonable limits ‑‑ Vagueness ‑‑ Federal legislation prohibiting public servants from engaging in work for or against a political party or candidate ‑‑ Whether legislation too vague to constitute a limit prescribed by law ‑‑ Canadian Charter of Rights and Freedoms, s. 1 ‑‑ Public Service Employment Act, R.S.C., 1985, c. P‑33, s. 33 .
Constitutional law ‑‑ Charter of Rights ‑‑ Remedies ‑‑ Relationship between s. 24(1) of Canadian Charter of Rights and Freedoms and s. 52(1) of Constitution Act, 1982 .
These appeals concern the constitutionality of s. 33(1) of the Public Service Employment Act, which prohibits public servants from "engag[ing] in work" for or against a candidate (s. 33(1)(a)) or a political party (s. 33(1)(b)). Under s. 33(2), a public servant does not contravene s. 33(1) by reason only of attending a political meeting or contributing money to the funds of a candidate or of a political party. The respondents, with one exception, are federal public servants who wished to participate in various political activities. They took action in the Federal Court, Trial Division seeking a declaration that s. 33 is of no force or effect in so far as it violates ss. 2 (b) and 2 (d) of the Canadian Charter of Rights and Freedoms . The court concluded that even if s. 33 infringed the rights of individual public servants guaranteed by the Charter , such limits were justified under s. 1 of the Charter . The Federal Court of Appeal set aside the judgment. The Court of Appeal found that ss. 33(1) (a) and 33(1) (b) infringed ss. 2 (b) and 2 (d) of the Charter but that s. 33(1) (b) was justifiable under s. 1 . Section 33(1)(a) of the Act was declared of no force or effect except as it applies to a "deputy head".
Held (Stevenson J. dissenting): The appeals should be dismissed.
(1) Constitutional Convention
Section 33 of the Act is not immune from Charter scrutiny merely because it may be said to uphold a constitutional convention. While conventions form part of the Constitution of this country in the broader political sense, i.e., the democratic principles underlying our political system and the elements which constitute the relationships between the various levels and organs of government, they are not enforceable in a court of law unless they are incorporated into legislation. Furthermore, statutes embodying constitutional conventions do not automatically become entrenched to form part of the constitutional law, but retain their status as ordinary statutes. Being a provision in an ordinary statute, s. 33 is subject to review under the Charter as any ordinary legislation.
(2) Freedom of Expression
Section 33 of the Act, which prohibits partisan political expression and activity by public servants under threat of disciplinary action including dismissal from employment, infringes the right to freedom of expression in s. 2 (b) of the Charter . Where opposing values call for a restriction on the freedom of speech, and, apart from exceptional cases, the limits on that freedom are to be dealt with under the balancing test in s. 1 , rather than circumscribing the scope of the guarantee at the outset. In this case, by prohibiting public servants from speaking out in favour of a political party or candidate, s. 33 of the Act expressly has for its purpose the restriction of expressive activity and is accordingly inconsistent with s. 2 (b) of the Charter . In light of the conclusion that s. 33 is inconsistent with s. 2 (b), it is neither necessary nor appropriate in the circumstances to determine whether there is also a violation of s. 2 (d) of the Charter .
(3) Reasonable Limit
Section 33 of the Act is sufficiently precise to constitute a limit prescribed by law under s. 1 of the Charter . Section 33 is not couched in such vague or general language that it does not contain an intelligible standard. The words "engage in work", while capable of very wide import, are ordinary simple words that are capable of interpretation. These words may present considerable difficulty in application to a specific situation, but difficulty of interpretation cannot be equated with the absence of any intelligible standard. Finally, the language of s. 33 does not create a standard which leaves it to the members of the Public Service Commission to ban whatever activity they please.
Per Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Cory and McLachlin JJ.: Section 33 of the Act is not saved by s. 1 of the Charter . While the legislative objective of maintaining the neutrality of the public service is of sufficient importance to justify a limitation on freedom of expression, the impugned legislation fails to meet the proportionality test. The restriction of partisan political activity is rationally connected to the objective but s. 33 does not constitute a measure carefully designed to impair freedom of expression as little as reasonably possible. The section bans all partisan‑related work by all public servants, without distinction either as to the type of work, or as to their relative role, level or importance in the public service hierarchy. The result of the broad general language of s. 33 is that the restrictions apply to a great number of public servants who in modern government are completely divorced from the exercise of any discretion that could be in any manner affected by political considerations. The need for impartiality and indeed for the appearance thereof does not remain constant throughout the civil service hierarchy. Section 33 , therefore, is over‑inclusive and, in many of its applications, goes beyond what is necessary to achieve the objective of an impartial and loyal civil service.
Per Stevenson J. (dissenting): Section 33(1)(a) of the Public Service Employment Act is justifiable under s. 1 of the Charter . The important objective of s. 33(1) (a) is to secure civil service neutrality in all of its elements. An effective civil service is essential to modern day democratic society and a measure of neutrality is necessary in order to preserve that effectiveness. No civil servant must owe, or be seen to owe, appointment or promotion to partisan activities since visible partisanship by civil servants would severely impair, if not destroy, the public perception of neutrality. In that context, s. 33(1)(a) of the Act is an acceptably proportional response to Parliament's objective. The section does not suffer from overbreadth and meets the "minimal impairment" test. The proposed less restrictive means, which distinguish between various levels of public servants (and thus abandon any restraint on the so‑called lower level civil service), would not satisfy the objective of preserving the civil service's political neutrality. Finally, there is an appropriate proportionality between the effects of the measure and the objective. The provision does not deny freedom of expression. It imposes a limitation on that freedom in the context of partisan political activities upon persons who must know, or at least be deemed to know, that employment in the public service involves acceptance of certain restraints.
(4) Remedy
Per Sopinka, Cory and McLachlin JJ.: In selecting an appropriate remedy under s. 24(1) of the Charter a court's primary concern must be to apply the measures that will best vindicate the values expressed in the Charter and to provide the form of remedy to those whose rights have been violated that best achieves that objective. The court, while it is given an express mandate to declare a law to be of no force or effect to the extent of its inconsistency with the Charter under s. 52(1) of the Constitution Act, 1982 , must be sensitive to its proper role in the constitutional framework and refrain from intruding into the legislative sphere beyond what is necessary to give full effect to the Charter 's provisions. In exercising its broad discretion to fashion an appropriate remedy in a Charter case, the court need not resolve the question as to whether there is a presumption of constitutionality. By reason of the diverse and novel problems which it will be called upon to redress, the court must maintain at its disposition a variety of remedies as part of its arsenal. "Reading down" legislation may, in some cases, be an appropriate remedy. The same result may on occasion be obtained by resort to the constitutional exemption. However, it is not necessary in this case to determine whether the Court has the power to apply such remedies in a Charter case since it is preferable to strike out s. 33(1) to the extent of its inconsistency with s. 2 (b). To maintain a section that is riddled with infirmity would not uphold the values of the Charter and would constitute a greater intrusion on Parliament's role. Parliament should determine how the section should be redrafted, not the Court. The Federal Court of Appeal's order, which declared s. 33(1)(a) of no force or effect except as it applies to a "deputy head", must stand since the respondents did not cross‑appeal or seek a variation of the order.
Per Wilson and L'Heureux‑Dubé JJ.: Once the Court has found that the impugned legislation on its proper interpretation is over‑inclusive, infringes on a Charter right, and cannot be justified as a reasonable limit under s. 1 , the Court has no alternative under s. 52(1) of the Constitution Act, 1982 but to strike the legislation down or, if the unconstitutional aspects are severable, to strike it down to the extent of its inconsistency with the Constitution. It is not open to the Court in these circumstances to create exemptions to the legislation (which presupposes its constitutional validity) and grant individual remedies under s. 24(1) of the Charter .
Per La Forest J.: The interplay between s. 24(1) of the Charter and s. 52(1) of the Constitution Act, 1982 does not really arise in this case. Wilson J. may well be right on this issue, but it should be left for consideration in a more appropriate case where its implications could be more fully assessed.
Cases Cited
By Sopinka J.
Applied: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Oakes, [1986] 1 S.C.R. 103; considered: Reference re Resolution to amend the Constitution, [1981] 1 S.C.R. 753; OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2; Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; referred to: Luscher v. Deputy Minister, Revenue Canada, Customs and Excise, [1985] 1 F.C. 85; Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Hebert, [1990] 2 S.C.R. 151; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Jones, [1986] 2 S.C.R. 284; United States of America v. Cotroni, [1989] 1 S.C.R. 1469; R. v. Beare, [1988] 2 S.C.R. 387; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; R. v. Rowley (1986), 31 C.C.C. (3d) 183; City of Montréal v. Arcade Amusements Inc., [1985] 1 S.C.R. 368; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; McKay v. The Queen, [1965] S.C.R. 798; Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110; R. v. Seaboyer (1987), 35 C.R.R. 300.
By Wilson J.
Referred to: R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177.
By Stevenson J. (dissenting)
Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2; United States of America v. Cotroni, [1989] 1 S.C.R. 1469; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; United States Civil Service Commission v. National Association of Letter Carriers, AFL‑‑CIO, 413 U.S. 548 (1973); R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b), (d), 24(1) .
Constitution Act, 1982, s. 52(1) .
Public Service Employment Act, R.S.C. 1970, c. P‑32, s. 32.
Public Service Employment Act, R.S.C., 1985, c. P‑33, s. 33 .
Authors Cited
Petit Robert 1. Paris: Le Robert, 1990, "travailler".
Rogerson, Carol. "The Judicial Search for Appropriate Remedies Under the Charter : The Examples of Overbreadth and Vagueness". In Robert J. Sharpe, ed., Charter Litigation. Toronto: Butterworths, 1987.
Shorter Oxford English Dictionary, 3rd ed. Oxford: Clarendon Press, 1987, "work".
Vaughn, Robert G. "Restrictions on the Political Activities of Public Employees: The Hatch Act and Beyond" (1976), 44 Geo. Wash. L. Rev. 516.
APPEALS from judgments of the Federal Court of Appeal, [1988] 3 F.C. 219, 52 D.L.R. (4th) 241, 87 N.R. 376, 43 C.R.R. 351, 22 C.C.E.L. 98, setting aside judgments of the Trial Division, [1986] 3 F.C. 206, 30 D.L.R. (4th) 662, 5 F.T.R. 29, 25 C.R.R. 229, 14 C.C.E.L. 230. Appeals dismissed, Stevenson J. dissenting.
Duff Friesen, Q.C., for the appellant.
John P. Nelligan, Q.C. and Dougald E. Brown, for the respondents Millar and Osborne.
Jeffry A. House, for the respondents Barnhart et al.
Jean Bouchard and Isabelle Harnois, for the intervener the Attorney General of Quebec.
Robert G. Richards, for the intervener the Attorney General for Saskatchewan.
Gale Welsh, for the intervener the Attorney General of Newfoundland.
//Wilson J.//
The reasons of Wilson and L'Heureux-Dubé JJ. were delivered by
Wilson J. -- Subject to the comments which follow I agree with the reasons for judgment of my colleague Justice Sopinka and would dispose of these appeals as he proposes. I do not share his views, however, as to the recourse open to the Court once it has found that the impugned legislation on its proper interpretation is over-inclusive, infringes on a Charter right, and cannot be justified as a reasonable limit under s. 1 . Once these findings have been made I believe that the Court has no alternative but to strike the legislation down or, if the unconstitutional aspects are severable, to strike it down to the extent of its inconsistency with the Constitution. I do not believe that it is open to the Court in these circumstances to create exemptions to the legislation (which, in my view, presupposes its constitutional validity) and grant individual remedies under s. 24(1) of the Canadian Charter of Rights and Freedoms . In other words, it is not, in my opinion, open to the Court to cure over-inclusiveness on a case by case basis leaving the legislation in its pristine over-inclusive form outstanding on the books.
Section 52(1) of the Constitution Act, 1982 , in my view, contemplates the exercise by the Court of its interpretive function as a first step. Once it has interpreted the impugned legislation it must decide on the basis of that interpretation whether the section is consistent or inconsistent with the citizen's Charter right. If it is consistent, there is no problem: the legislation is constitutional and the citizen must abide by it. If it is inconsistent, then the Court must declare it of no force or effect to the extent of the inconsistency. Section 52(1) , in my view, mandates this result.
The purpose of s. 24(1) , in my view, is to provide an appropriate and just remedy to an individual whose guaranteed rights or freedoms have been infringed or denied. As was stated by this Court in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 313:
Section 24(1) sets out a remedy for individuals (whether real persons or artificial ones such as corporations) whose rights under the Charter have been infringed. It is not, however, the only recourse in the face of unconstitutional legislation. Where, as here, the challenge is based on the unconstitutionality of the legislation, recourse to s. 24 is unnecessary and the particular effect on the challenging party is irrelevant.
Similarly in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, it was stated at p. 221:
I turn now to the issue of the remedy to which the appellants are entitled. Sections 24(1) of the Charter and 52(1) of the Constitution Act, 1982 both apply. Section 52(1) requires a declaration that s. 71(1) of the Immigration Act, 1976 is of no force and effect to the extent it is inconsistent with s. 7 . The appellants who have suffered as a result of the application of an unconstitutional law to them are entitled under s. 24(1) to apply to a court of competent jurisdiction for "such remedy as the court considers appropriate and just in the circumstances".
I believe also that a distinction has to be made between creating exemptions from the legislation under s. 24(1) which presupposes its constitutionality and "reading down" the legislation which is a process of interpretation so as to restrict the scope of its application. In the latter case the legislation is held as a matter of interpretation not to apply to X and no intervention by the Court under s. 24(1) is required. In the former case the legislation is found on its proper interpretation to apply to X but the Court intervenes to give him or her relief under s. 24(1) .
With these reservations I would dismiss the appeals as my colleague suggests.
//La Forest J.//
The following are the reasons delivered by
La Forest J. -- I am in general agreement with the reasons of my colleague, Justice Sopinka, except as they relate to his discussion of s. 24(1) of the Canadian Charter of Rights and Freedoms and its interplay with s. 52(1) of the Constitution Act, 1982 . I suspect my colleague, Justice Wilson, may well be right on this issue, but since the point does not really arise in this case, I prefer to leave it for consideration when it does arise and its implications can be more fully assessed.
//Sopinka J.//
The judgment of Sopinka, Cory and McLachlin JJ. was delivered by
Sopinka J. -- These appeals concern the constitutionality of s. 33 of the Public Service Employment Act, R.S.C., 1985, c. P-33 (the "Act "), which prohibits public servants from engaging in work for or against a political party or candidate. The Public Service Commission (the "Commission") appeals from judgments of the Federal Court of Appeal allowing appeals from the judgments of the Federal Court, Trial Division, dismissing the actions of the respondents for declarations that s. 33 of the Act is void by reason of its conflict with ss. 2 (b) and 2 (d) of the Canadian Charter of Rights and Freedoms .
Facts
P.S.C. v. Barnhart, Camponi, Cassidy, Clavette and Stevens
The respondents Barnhart, Camponi, Clavette and Stevens are all public servants within the meaning of the Act . They wished to work after working hours on behalf of the fifth respondent, Cassidy, who was, at the time the action was brought, a candidate for election to Parliament and, at the time of trial, a Member of Parliament.
Barnhart and Camponi are both employed by the Department of Indian Affairs and Northern Development. Barnhart claims that he does not meet the public in his job which involves monitoring the environment in the Indian reserves. Camponi, whose job entails research in the archives of the Department, maintains 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. Clavette, who is employed as a clerk in the Department of National Defence, is also the President of the Ottawa Labour Council and would like to work for candidates who support positions which enhance the rights of working people. Stevens, employed in the Public Archives of Canada, wishes to participate in activities such as envelope stuffing and addressing of correspondence from her own home or from the campaign offices of the party she supports.
The respondents commenced proceedings in the Federal Court of Appeal, Trial Division, seeking a declaration that s. 33 of the Act is of no force and effect in so far as it violates ss. 2 (b) and 2 (d) of the Charter and an injunction enjoining the Commission from enforcing it.
P.S.C. v. Osborne; P.S.C. v. Millar
The respondents Osborne and Millar are public servants who were elected to be delegates to the 1984 leadership convention of the Liberal Party. They were both forced to resign as delegates after being advised by their employers, the Superintendent of Insurance and the Regional Director General of Indian and Inuit Affairs, respectively, that they would suffer disciplinary action if they failed to do so.
In the case of Osborne, who is employed in the Actuarial Branch of the Department of Insurance, he was advised by his supervisor shortly after his election as a delegate that he would incur a disciplinary penalty if he did not resign his position. When a federal by-election was called in his riding, Osborne sought and obtained a leave of absence without pay pursuant to s. 33(3) of the Act to become a candidate for the party nomination. He admitted that his motive in so doing was to enable him to participate in the leadership convention. Following the convention, Osborne requested that his leave be terminated on the basis that there was insufficient support for his nomination, and this was granted.
The respondent Millar is a commerce officer in the Indian and Inuit Affairs Branch of the Department of Indian and Northern Affairs. Following his election as a delegate to the leadership convention, he was given written permission to attend. However, this permission was subsequently revoked by the Regional Director General of Indian and Inuit Affairs who gave Millar twenty-four hours notice to resign.
The respondents Millar and Osborne initiated actions in the Federal Court, Trial Division, seeking declarations that their respective employers had no authority or basis in law to order them not to attend the convention as delegates and that s. 33 of the Act is of no force and effect in so far as it violates ss. 2 (b) and 2 (d) of the Charter .
Judgments of Courts Below
The three actions and the ensuing appeals were heard together.
Federal Court, Trial Division, [1986] 3 F.C. 206
Walsh J. accepted that there is in Canada, as in other democratic countries, a "convention of political neutrality" in the public service which necessitates the placing of some restraints on partisan political activity. However, these restraints should be as few as possible and no more than are necessary to attain the objective of political neutrality. He was of the view that this is what s. 33 of the Act attempts to do although the general language requires some judicial interpretation when applied to specific instances of political activity.
Walsh J. rejected the argument, based on Luscher v. Deputy Minister, Revenue Canada, Customs and Excise, [1985] 1 F.C. 85 (C.A.), that the words "engage in work" are sufficiently vague as to justify a finding that the impugned section is of no force and effect as being contrary to the Charter . He reasoned that such a finding would have the consequence of removing all restrictions on political activity on public servants "when it has been accepted that some limitation is desirable and necessary" (p. 236).
Walsh J. was of the opinion that in the absence of amending legislation or defining regulations, judicial interpretation of the provision was required. However, he declined to generalize as to which activities are permissible under the provision, choosing to leave this to be decided on a case-by-case basis. The trial judge applied the provision to the facts of the cases noting that the degree of restraint which must be exercised is relative to the position and visibility of the public servant.
With respect to the respondents Millar and Osborne, Walsh J. found that their election as delegates to the leadership convention did not infringe s. 33 of the Act . With respect to the respondent Cassidy, who had argued that the provision infringed his freedom of association under the Charter , Walsh J. observed that he was indeed restricted in his desire to employ public servants to work in connection with his election campaign, but chose to consider this question from the perspective of whether the other respondents' rights of association with him were infringed.
Walsh J. then set out the permissible activities of the other respondents. In the case of the respondent Barnhart, Walsh J. found that, as s. 33 specifically permitted the attending of political meetings and contribution of money for candidates, it implicitly allows participation in discussion relating to the development of policies. However, this permission does not extend to any statements of a partisan political nature. He concluded that Barnhart should not act as a scrutineer at a polling station. With respect to the respondent Camponi, Walsh J. noted that in publicly stating her opinion as to which political party has the best policy on women's issues, she would undoubtedly be engaging in work on behalf of a political party. While her freedom to express her personal views is unrestricted, she should not identify herself as supporting them on behalf of any given political party. Similarly, Walsh J. noted that the respondent Clavette is free to express his views on issues of interest to him but would violate s. 33 of the Act if he were to publicly support a political party which he feels 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. In the case of the respondent Stevens, he was of the view that it would be giving too wide an interpretation to s. 33 to find that the stuffing of envelopes and the addressing of correspondence would be prohibited as she would not be directing public attention to herself as working on behalf of a given political party.
Walsh J. did not discuss whether s. 33 of the Act constituted a violation of ss. 2 (b) and 2 (d) of the Charter , but went directly to the discussion under s. 1 of the Charter . He concluded that even if s. 33 of the Act infringed the rights of individual public servants guaranteed by the Charter , such limits (on the basis of the section as "judicially interpreted") are reasonably prescribed and can be justified under s. 1 .
Federal Court of Appeal, [1988] 3 F.C. 219
The Federal Court of Appeal overturned the judgment of Walsh J. on the basis that the impugned provision is vague and wide open to discretionary application and, as such, fails to meet the test of "reasonable limit" as set out in Luscher, supra. Mahoney J.A. considered the evidence showing that the Commission itself had difficulty in interpreting the expression "engage in work" to be determinative in this regard. Accordingly, he was of the view that the trial judge erred in limiting the remedy to a declaration as to which of the activities engaged in by the respondents was permissible under the Act .
In reaching this conclusion, Mahoney J.A. accepted the existence of a constitutional convention of political neutrality, but rejected the submission that the public right arising out of the convention pre-empts the respondents' rights under the Charter or that the provision in question is thereby exempt from review under the Charter . He noted, however, that the existence of a constitutional convention supporting a limitation may "go a long way toward demonstrating its justification" under s. 1 of the Charter .
Furthermore, while the activities affected by s. 33 of the Act may be addressed as a violation of the guarantee of freedom of expression, Mahoney J.A. was of the view that such rights are protected independently by the guarantee of freedom of association. He found that s. 33 of the Act infringed the right to freedom of association on the basis that the right to associate with others is fundamental to a process whose essence is that conflicting interests be advanced and opposed by electoral means.
Finally, Mahoney J.A. stated in obiter that the limitation on candidacy was expressed in adequately definitive terms. Following the analysis advocated in R. v. Oakes, [1986] 1 S.C.R. 103, he reached the conclusion that the scheme of s. 33(1)(b) constitutes a "rational, reasonable and fair basis upon which a federal public servant may seek a Parliamentary or legislative seat" (p. 233).
Relevant Legislation
Public Service Employment Act, R.S.C., 1985, c. P-33
33. (1) No deputy head and, except as authorized under this section, no employee, shall
(a) engage in work for or against a candidate;
(b) engage in work for or against a political party; or
(c) be a candidate.
(2) A person does not contravene subsection (1) by reason only of attending a political meeting or contributing money for the funds of a candidate or of a political party.
(3) Notwithstanding any other Act , on 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 the employee then occupies would not be impaired by reason of that employee having been a candidate, grant to the employee leave of absence without pay to seek nomination as a candidate and to be a candidate for election, 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 the employee has ceased to be a candidate.
The above provision is a revised version of the section which was in force at the time of the trial and appeal. The former provision 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.
The minor changes to the section as a result of the recent revision do not have an effect on this appeal and all references will be to the new provision.
Canadian Charter of Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
Issues
The issues raised by these appeals are the following:
1.Can a statutory provision, such as s. 33 of the Act , that implements a constitutional convention be considered to be inconsistent with the Constitution?
2.If the response to the first question is in the affirmative, are the provisions of s. 33 of the Act inconsistent with ss. 2 (b) or 2 (d) of the Charter ?
3.If the response to the second question is in the affirmative, does s. 33 of the Act establish such reasonable limits as can be demonstrably justified in a free and democratic society?
1.The Effect of the Constitutional Convention of Political Neutrality
The existence of a convention of political neutrality, central to the principle of responsible government, and the upholding of that convention in s. 33 of the Act , is not seriously disputed. Rather, the debate centres around the effect of the convention in assessing the validity of the impugned provision. The appellant contends that because s. 33 of the Act gives expression to the constitutional values embodied in the convention of public service neutrality, it forms "a part" of the Constitution and cannot therefore be "inconsistent" with the Constitution. Relying then on the words of Wilson J. in Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148, that "[i]t was never intended . . . that the Charter could be used to invalidate other provisions of the Constitution" (p. 1197), the appellant argues that there cannot be a breach of the Charter where there is a competing constitutional provision. The appellant's argument, which I may state at the outset to be untenable, is based on the decision of this Court in Reference re Resolution to amend the Constitution, [1981] 1 S.C.R. 753 (the "Patriation Reference"), and on the decision of Beetz J. in OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2.
In the Patriation Reference, this Court explored the nature of constitutional conventions and recognized that in contradistinction to the variety of statutes and common law rules which make up the "law of the constitution", conventions are not enforceable by the courts unless they are crystallized into laws by way of statutory adoption. Underlying this distinction between constitutional law and constitutional conventions is the contrast between legal and political constitutionalism. The Court stated (at pp. 883-84):
It should be borne in mind however that, while they are not laws, some conventions may be more important than some laws. Their importance depends on that of the value or principle which they are meant to safeguard. Also they form an integral part of the constitution and of the constitutional system. They come within the meaning of the word "Constitution" in the preamble of the British North America Act, 1867 . . . .
That is why it is perfectly appropriate to say that to violate a convention is to do something which is unconstitutional although it entails no direct legal consequence. But the words "constitutional" and "unconstitutional" may also be used in a strict legal sense, for instance with respect to a statute which is found ultra vires or unconstitutional. The foregoing may perhaps be summarized in an equation: constitutional conventions plus constitutional law equal the total constitution of the country.
Therefore, while conventions form part of the Constitution of this country in the broader political sense, i.e., the democratic principles underlying our political system and the elements which constitute the relationships between the various levels and organs of government, they are not enforceable in a court of law unless they are incorporated into legislation. Furthermore, statutes embodying constitutional conventions do not automatically become entrenched to become part of the constitutional law, but retain their status as ordinary statutes. If that were not the case, any legislation which may be said to embrace a constitutional convention would have the effect of an amendment to the Constitution which would have escaped the rigorous requirements of the constitutional amendment process.
In support of its argument, the appellant also draws attention to the decision of Beetz J. in OPSEU, supra. That case, which was argued and decided on the basis of the division of powers, dealt with the validity of provisions in the Ontario Public Service Act, R.S.O. 1970, c. 386, similar to those in the present case. Beetz J. found the provisions to be constitutional in nature, but I believe he made it clear (at p. 41) that the term "constitutional" in that context was not to be equated with constitutional law:
It is clear to me that those provisions are constitutional in nature in the sense that they bear on the operation of an organ of government in Ontario and that they impose duties on the members of a branch of government in order to implement a principle of government. [Emphasis added.]
Beetz J. thus recognized that the constitution of Ontario is composed of ordinary statutes which are susceptible to being amended or repealed by ordinary statutes (at p. 46):
In my opinion, the impugned provisions constitute an ordinary legislative amendment of the constitution of Ontario, within the meaning of s. 92(1) of the Constitution Act, 1867 .
In my view, there is nothing in his analysis which reveals an intention to confer on such ordinary statutes the status of constitutional entrenchment in the legal sense. Based on the foregoing, I am unable to agree with the appellant that s. 33 of the Act is immune from Charter scrutiny merely because it may be said to uphold a constitutional convention. Being a provision in an ordinary statute, it is subject to review under the Charter as any ordinary legislation. While the existence of a constitutional convention does not pre-empt scrutiny of the provision under the Charter , it is an important consideration in determining whether, in enacting s. 33 , Parliament was seeking to achieve an importa