Taman v. Canada (Attorney General)

Taman v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2015-10-13
Neutral citation
2015 FC 1155
File numbers
T-60-15
Notes
Reported Decision
Decision Content
Date: 20151013
Docket: T-60-15
Citation: 2015 FC 1155
Ottawa, Ontario, October 13, 2015
PRESENT: The Honourable Madam Justice Kane
BETWEEN:
EMILIE TAMAN
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
Overview [1] In a decision dated December 16, 2014, the Public Service Commission [Commission] denied the request of the applicant, Emilie Taman, for permission and a leave of absence without pay to seek nomination and be a candidate in the next federal election pursuant to subsections 114(4) and (5) of the Public Service Employment Act, SC 2003, c 22, ss 12, 13 [PSEA].
[2] The applicant submits that the Commission’s decision infringes her rights pursuant to paragraphs 2(b), 2(d) and section 3 of the Charter, and does not reflect a proportionate balancing of her Charter rights and the statutory objectives of the PSEA, and is, therefore, unreasonable.
[3] Upon consideration of the comprehensive submissions of the applicant and respondent, the legislation, the reasons for the Commission’s decision, the record, and the jurisprudence, I find that, although the decision of the Commission limits the applicant’s Charter rights, it does reflect a proportionate balancing of the Charter rights at stake, to engage in political activity and run for office, with the principle of political impartiality in the public service.
[4] The applicant followed the required procedure in her request for permission to seek the candidacy and pursue election and to obtain a leave without pay, with a view to returning to her position if she were unsuccessful in her candidacy or election. She provided comprehensive submissions to the Commission which noted her Charter rights, addressed all the relevant facts, described all aspects of her work, candidly highlighting those which could give rise to a perception of partiality, and suggested options to provide some “middle ground” to guard against such perceptions.
[5] The Director of Public Prosecution’s [DPP] submissions to the Commission highlighted the need to ensure that the Office of the DPP [ODPP] discharged its prosecutorial duties in a politically impartial manner and to ensure that there would be no perception of political partiality on the part of federal prosecutors. The DPP’s submissions focussed on the independence and integrity of the ODPP, of which the applicant is part, and not on the applicant’s integrity, which has never been questioned. The concern of the Commission, based on this input, is primarily about perception, which is as important as actual impartiality in the present context.
[6] The Commission considered the competing rights and interests at play as required pursuant to the PSEA. The decision reflects that the Commission considered all the facts and, based on its overall view, determined that the applicant’s rights could not be fully protected while at the same time maintaining the objective of political impartiality in the public service. Measures to mitigate the impact of the limitation of the applicant’s rights were considered, but were reasonably found to not be feasible to satisfy the Commission that the applicant’s ability to perform her duties in a politically impartial manner would not be impaired or perceived to be impaired if she were to return to her duties.
[7] Although the decision has a significant impact on the applicant from her own perspective – because the trade-off for her is between maintaining her employment or pursuing her candidacy and election – the determination whether the decision reflects a proportionate balancing is guided by the jurisprudence which calls for the consideration of the statutory and factual context, and highlights that the goal is to protect Charter rights as fully as possible.
[8] The reality is that it is not always possible to strike a perfect balance either between competing Charter rights or between Charter rights and other rights and interests. Some rights may be required to give way to others in a manner which will be considered disproportionate by one party or the other. The notion of protecting Charter rights as fully as possible recognizes that rights are not absolute and full protection is not always possible.
[9] For the more detailed reasons that follow, the application is dismissed.
Background [10] Ms Taman, a prosecutor in the Regulatory and Economic Prosecutions and Management Branch of the Public Prosecution Service of Canada [PPSC] submitted a request in November 2014 to the Commission pursuant to section 114 of the PSEA. Ms Taman requested permission to seek nomination as and, if nominated, be a candidate in the federal election to be held on October 19, 2015. She also requested a leave of absence without pay before and during the election period. The Commission denied her request on December 16, 2014.
[11] Ms Taman described her role and duties in her request, submitted in accordance with the applicable form and procedure, and in her submissions to the Commission which attached her work description. In her affidavit, she described that she is responsible for assessing investigative files to provide pre-charge legal advice or an opinion pre-charge regarding potential prosecutions; prosecuting files once the decision to prosecute has been made; appearing in court to prosecute; applying to a judge for various sentencing matters; negotiating with opposing counsel; and supporting other prosecutors on complex and lengthy cases or projects. In her affidavit, she noted that her team at the PPSC was responsible for regulatory offences other than drug offences and that she had carriage of, or worked on, prosecutions under the Immigration and Refugee Protection Act, SC 2001, c 27; the Fisheries Act, RSC 1985, c F-14; the Income Tax Act, RSC 1985, c 1 (5th Supp); and the Lobbying Act, RSC 1985, c 44 (4th Supp).
[12] In her submissions to the Commission, in response to specific questions in the request form, Ms Taman acknowledged that there could be a public perception that she would be unable to perform her duties impartially in the period leading up to the nomination and before and during the election period, but noted that her intention was to be on leave without pay during this period and not working and, if she returned to work, in the event that she did not receive the nomination or were not elected, the public would understand that there is a distinction between a lawyer’s personal views and the positions they take in Court.
[13] The request for permission to the Commission, in the required form, included the views of the applicant’s immediate supervisor [Team Leader] and senior management. The Team Leader indicated that he was not satisfied that the applicant’s ability to perform her duties in a politically impartial manner would not be impaired or be perceived to be impaired during the election. He noted that her position may need to be filled in her absence. However, he indicated that if the applicant returned to work after not receiving the nomination or not being elected, he was satisfied that her ability to perform her duties in a politically impartial manner would not be impaired or be perceived to be impaired because the legal community and public understand that the advocate’s job is to apply the law to a set of facts, not to make law. In other words, the Team Leader had concerns about the impairment or perceived impairment of the applicant’s ability to perform her duties up to the election, but did not have these concerns if she were to return to work if not elected.
[14] The DPP expressed the opinion that seeking nomination or candidacy before or during an election period indicates a significant allegiance to a political party and its platform, which would undermine the independence of the prosecutorial function and could lead to the public perception that the applicant’s political allegiance influences her judgment as a prosecutor. The DPP also indicated that the applicant may be called to work on files of a political character, including offences under the Lobbying Act, the Canada Elections Act, SC 2000, c 9 and the Parliament of Canada Act, RSC 1985, c P-1.
[15] The DPP indicated that he was not satisfied that if the applicant returned to her position if unsuccessful in seeking the nomination or election, that her ability to perform her duties in a politically impartial manner would not be impaired or be perceived to be impaired. The DPP indicated that this raises the risk that the decisions made by the applicant could be perceived by investigators and the public as influenced by political considerations. In other words, the DPP had concerns about the impairment or perceived impairment of the applicant’s ability to perform her duties both before the election period and upon her return to work, after having been a candidate in a federal election.
[16] The DPP also indicated that he could not accommodate the applicant’s return to another, non-prosecutorial, position because the core activities of the ODPP are the prosecution of federal offences and the provision of advice to investigative agencies, both of which require political impartiality or the perception of political impartiality. The DPP added that it would be necessary to fill the applicant’s position in her absence.
[17] The DPP provided additional comments to elaborate on the answers to specific questions in the request form indicating that partisan political activities by prosecutors undermine the prosecutorial function; that independence is central to the prosecutorial decision-making process; that prosecutorial decision-making process is quasi-judicial; that prosecutors exercise their quasi‑judicial duties in the public interest and must be free from partisan political influence; and, that his view is that federal prosecutors should abstain from any political activity. The DPP also noted a past incident where the ODPP was called upon to address a complaint related to an individual who had engaged in political activities prior to becoming a federal prosecutor.
[18] Ms Taman provided additional submissions to the Commission in response to senior management’s comments, noting that: the DPP’s position does not acknowledge her rights under the Charter; prosecutorial independence is institutional and her discretion is highly circumscribed; prosecutors ought not to be held to the same standard as judges when it comes to personal partisan activities; the views of the DPP are not shared by other jurisdictions where prosecutors have been candidates in elections and returned to their positions; former political candidates are not barred from joining the PPSC as prosecutors; the PPSC has not communicated its view that prosecutors should abstain from all political involvement; the mere possibility of complaints is not a basis to refuse a request; an individual prosecutor can be insulated from relatively rare politically sensitive prosecutions; and, remote hypotheticals should not be given undue weight. The applicant added that reasonable accommodations should be considered to overcome the barriers to women’s representation in politics and suggested that there are ways to grant her request without undue burden on the PPSC, including by maintaining “firewalls” and assigning politically sensitive files to others.
The Decision [19] The Commission cited the relevant statutory provisions. Pursuant to subsections 114(1) and (2) of the PSEA, an employee may seek nomination as a candidate before or during the election period or be a candidate before the election period only if he or she has requested and obtained permission from the Commission. Pursuant to subsection 114(3), an employee may only be a candidate during the election period if he or she has obtained leave without pay from the Commission. Finally, pursuant to subsections 114(4) and (5), the Commission may only grant permission or leave without pay if it is satisfied that the employee’s ability to perform his or her duties in a politically impartial manner will not be impaired or perceived to be impaired.
[20] The relevant statutory provisions are set out in Annex A.
[21] The Commission noted that the applicant had sought permission in accordance with subsections 114(1), (2) and (3) of the PSEA and it had considered the information she provided as well as the information provided by her Team Leader and senior management at the ODPP.
[22] The Commission noted its concerns that the applicant’s ability to perform her duties as a federal prosecutor in a politically impartial manner may be impaired or perceived to be impaired in light of the nature of her duties and the increased publicity, visibility and recognition that would be associated with seeking nomination and being a candidate in a federal election.
[23] The Commission found that as a federal prosecutor in the Regulatory and Economic Prosecutions and Management Branch, the applicant has a high level of autonomy and decision‑making power, noting that she: prosecutes federal regulatory offences; provides legal advice to the Royal Canadian Mounted Police [RCMP] and other federal organizations regarding federal prosecutions; may apply for seizure or forfeiture of property; is involved in plea and sentencing discussions; is involved in “determining issue resolution” on some files; is highly visible when she appears in Court; and, may be required to deal with the media.
[24] The Commission noted the views of the DPP that the applicant’s candidacy publicly indicates a significant allegiance to a political party and its platform and that this would undermine the independence and prosecutorial function of the ODPP. The Commission found that this, in turn, could lead to a perception that the applicant is not able to perform her duties in a politically impartial manner.
[25] The Commission found that the risk to political impartiality could not be mitigated by a leave without pay or by the applicant assuming a non-prosecutorial role if she returned to work. The Commission noted that the ODPP had indicated that it could not accommodate these measures because it is a small organization, its core activities are the prosecution of offences and the provision of advice to investigatory agencies, and that few counsel positions do not exercise discretionary powers.
[26] The Commission concluded that it was not satisfied that being a candidate during the election period would not impair or be perceived as impairing the applicant’s ability to perform her duties in a politically impartial manner. The Commission denied both the permission and leave without pay, which is a condition precedent to a public servant seeking election.
The Applicant’s Overall Position [27] The applicant argues that the decision of the Commission is unreasonable because it disproportionately limits her Charter rights, specifically paragraphs 2(b), 2(d) and section 3 of the Charter.
[28] The applicant does not challenge the constitutionality of the provisions of the PSEA, but rather argues that the decision of the Commission does not reflect a proportionate balancing of her Charter rights. The applicant argues that the Commission did not exercise its discretion in accordance with the principles established by the Supreme Court of Canada in Doré v Barreau du Quebec, 2012 SCC 12, [2012] 1 SCR 395 [Doré] governing the review of administrative decisions which engage and limit Charter rights and values. The applicant submits that the effect of the decision is to prohibit all federal prosecutors from seeking candidacy and election and this blanket prohibition, combined with the Commission’s failure to mitigate the impact of the limitation on her Charter rights, is not proportionate.
[29] The applicant seeks an order to set aside the decision of the Commission and to order that she is entitled to seek nomination as a candidate in the next federal election and is entitled to a leave of absence without pay during the election period.
The Respondent’s Overall Position [30] The respondent submits that the Commission applied the appropriate framework and its determination that there may be a perception of impairment of political partiality is justified by the facts. The respondent acknowledges that the applicant’s rights pursuant to paragraph 2(b) and section 3 of the Charter are affected by the decision, but disagrees that paragraph 2(d) is engaged. The respondent submits that the PSEA reflects the need to balance Charter rights and values with the competing objectives of the PSEA. The Commission has the discretion to permit or deny a public servant from seeking candidacy and election in a federal election in accordance with the provisions of the PSEA. The Commission conducted an assessment of the applicant’s request and of her specific duties and its decision does not reflect a blanket prohibition on federal prosecutors. The Commission exercised its discretion reasonably and proportionately.
The Standard of Review of Administrative Decisions that Affect Charter Rights [31] The parties agree that the standard of review to be applied to discretionary decisions which implicate Charter rights is reasonableness and, in this context, the approach has been established by the Supreme Court of Canada in Doré and more recently reiterated and applied in Loyola High School v Quebec (Attorney General), 2015 SCC 12, 382 DLR (4th) 195 [Loyola].
[32] In Doré, the Supreme Court established that reviewing courts should apply the reasonableness standard to administrative decisions challenged on Charter grounds, but, in doing so, the reviewing court must assess whether the decision reflects a proportionate balancing of the Charter protections at stake and the relevant statutory mandate.
[33] The parties agree that a decision which reflects a proportionate balancing of Charter rights and values is a reasonable decision. However, the parties differ on whether the Commission’s decision reflects such a proportionate balancing in accordance with the framework set out in Doré.
[34] In Doré, the Supreme Court of Canada described the balancing required by the decision maker and the role of the Court on judicial review as follows:
[55] How then does an administrative decision-maker apply Charter values in the exercise of statutory discretion? He or she balances the Charter values with the statutory objectives. In effecting this balancing, the decision-maker should first consider the statutory objectives. In Lake, for instance, the importance of Canada’s international obligations, its relationships with foreign governments, and the investigation, prosecution and suppression of international crime justified the prima facie infringement of mobility rights under s. 6(1) (para. 27). In Pinet, the twin goals of public safety and fair treatment grounded the assessment of whether an infringement of an individual’s liberty interest was justified (para. 19).
[56] Then the decision-maker should ask how the Charter value at issue will best be protected in view of the statutory objectives. This is at the core of the proportionality exercise, and requires the decision-maker to balance the severity of the interference of the Charter protection with the statutory objectives. This is where the role of judicial review for reasonableness aligns with the one applied in the Oakes context. As this Court recognized in RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 160, “courts must accord some leeway to the legislator” in the Charter balancing exercise, and the proportionality test will be satisfied if the measure “falls within a range of reasonable alternatives”. The same is true in the context of a review of an administrative decision for reasonableness, where decision-makers are entitled to a measure of deference so long as the decision, in the words of Dunsmuir, “falls within a range of possible, acceptable outcomes” (para. 47).
[57] On judicial review, the question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play. As LeBel J. noted in Multani, when a court is faced with reviewing an administrative decision that implicates Charter rights, “[t]he issue becomes one of proportionality” (para. 155), and calls for integrating the spirit of s. 1 into judicial review. Though this judicial review is conducted within the administrative framework, there is nonetheless conceptual harmony between a reasonableness review and the Oakes framework, since both contemplate giving a “margin of appreciation”, or deference, to administrative and legislative bodies in balancing Charter values against broader objectives.
[35] In Loyola, the Supreme Court of Canada reiterated and applied the Doré framework, noting that: “In the context of decisions that implicate the Charter, to be defensible, a decision must accord with the fundamental values protected by the Charter” (at para 37). The Court also noted the analogy with the concept of minimal impairment of Charter rights:
[40] A Doré proportionality analysis finds analytical harmony with the final stages of the Oakes framework used to assess the reasonableness of a limit on a Charter right under s. 1: minimal impairment and balancing. Both R. v. Oakes, [1986] 1 S.C.R. 103, and Doré require that Charter protections are affected as little as reasonably possible in light of the state’s particular objectives: see RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 160. As such, Doré’s proportionality analysis is a robust one and “works the same justificatory muscles” as the Oakes test: Doré, at para. 5.
[41] The Doré analysis is also a highly contextual exercise. As under the minimal impairment stage of the Oakes analysis, under Doré there may be more than one proportionate outcome that protects Charter values as fully as possible in light of the applicable statutory objectives and mandate: RJR-MacDonald, at para. 160.
[36] The guidance of the Supreme Court of Canada regarding how decision-makers should approach decisions implicating Charter rights and how Courts should judicially review these decisions is summarized below.
− The overall goal is to balance the Charter rights or values with the statutory objectives and to limit the Charter protected rights or values as little as possible (or to protect the Charter rights and fully as possible) in light of the statutory objectives.
− To achieve this balance, the decision maker should:
• Consider the statutory objectives;
• Consider how the Charter value at issue will best be protected in view of the statutory objectives; and,
• In doing so, balance the severity of the interference of the Charter protection with the statutory objectives.
− On judicial review, the question for the Court is whether the decision-maker followed the approach described above; i.e., whether the decision reflects a proportionate balancing of the Charter protections at play, taking into consideration the impact of the relevant Charter protections, as well as the nature of the decision and the statutory and factual context.
− What is a proportionate balancing?
• A proportionate balancing is one that gives effect, as fully as possible, to the Charter protections at stake given the particular statutory mandate.
• Looked at from the other perspective, this means that Charter protections should be affected as little as reasonably possible in light of the statutory objectives; this mirrors the minimal impairment aspect of the Oakes test.
• The proportionality analysis should be “robust” and contextual.
− There may be more than one proportionate outcome. A “margin of appreciation” or deference is given to the decision-maker in balancing Charter values against broader objectives.
− Finally, a decision that proportionately balances Charter rights or values against the legislative objectives “falls within a range of possible, acceptable outcomes” and will be found to be reasonable on judicial review.
[37] Although the Court has provided these guiding principles to decision-makers and to Courts reviewing such decisions, the practical application of the principles is not a simple matter.
The Charter Rights Implicated Section 3 [38] Section 3 of the Charter provides that every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein. The right has been described by the Supreme Court of Canada as the “right to run for office” (Figueroa v Canada (Attorney General), 2003 SCC 37 at paras 26, 29, [2003] 1 SCR 912).
[39] There is no dispute that the applicant’s right to run for office is engaged and should be protected to the extent possible.
Paragraph 2(b) [40] Paragraph 2(b) protects, as a fundamental freedom, freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.
[41] As noted by the applicant, the right of freedom of expression is interpreted broadly and purposively and encompasses “[a]n activity by which one conveys or attempts to convey meaning will prima facie be protection by s. 2(b)” (Greater Vancouver Transportation Authority v Canadian Federation of Students – British Columbia Component, 2009 SCC 31 at para 27, [2009] 2 SCR 295). The applicant’s ability to communicate and convey information and messages to members of the political party that she seeks to represent as a candidate and to the public in her efforts to be elected as a Member of Parliament is clearly implicated by the decision and should be protected to the extent possible.
Paragraph 2(d) [42] Paragraph 2(d) protects, as a fundamental freedom, freedom of association.
[43] The applicant submits that the Commission’s decision violates her freedom of association pursuant to paragraph 2(d), because the decision violates her right to freely associate with a political party and seek nomination to be a candidate of that party. Although she is not prevented from being a member of a political party, she submits that other aspects of paragraph 2(d) are infringed. The applicant notes that freedom of association has three aspects: constitutive, derivative and purposive (Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1 at paras 51-54, [2015] 1 SCR 3). The applicant argues that the decision violates the derivative aspects of freedom of association, the right to associational activity that specifically relates to other constitutional freedoms, because running for office is a constitutionally protected activity. The applicant adds that the importance of political parties to the democratic process should not be overlooked and that paragraph 2(d) contemplates more than simply associating with others, including political parties, and that a purposive approach recognises that the right to associate encompasses seeking the nomination to represent a political party and seeking election.
[44] The respondent disputes that paragraph 2(d) is engaged because the applicant is not prohibited from being a member of any political party or seeking the nomination of a specific political party. Although she is prohibited from seeking nomination for political office while employed by the public service, she may still associate with others to support another candidate for office.
[45] For the purpose of this judicial review, it is not necessary to determine the scope of the applicant’s paragraph 2(d) rights and how, if any, these rights have been affected. The applicant’s rights pursuant to paragraph 2(b) and section 3 are clearly affected and the applicant’s argument that her right to associate is also affected is closely linked in these circumstances to the content of the paragraph 2(b) and section 3 rights implicated. The issue is whether the decision proportionately balances the Charter rights with the statutory objectives. The identification of the right to associate will not affect the outcome of this judicial review.
The Issue Does the decision of the Commission reflect a proportionate balancing of the Charter rights at stake in light of the statutory objectives and is the decision, therefore, reasonable? The Applicant’s Submissions [46] The applicant argues that the Commission’s decision disproportionately infringes her Charter rights in view of the nature of the decision, the statutory context and the factual context.
Nature of the Decision [47] The applicant submits that the decision amounts to a ban on all federal prosecutors as candidates in a federal election. Such a blanket prohibition is inconsistent with Harquail v Canada (Public Service Commission), 2004 FC 1549, 264 FTR 181 [Harquail]. Although the Court dismissed the judicial review of a decision denying permission to a federal prosecutor for mootness and the decision predates Doré, the Court’s comments, which criticized the Commission for not conducting a comprehensive inquiry and for considering remote possibilities, is relevant to the present circumstances (at para 36). In other words, a comprehensive inquiry would support a positive decision for a federal prosecutor by the Commission.
[48] The applicant points to the Commission’s decision, which refers to “federal prosecutor” repeatedly, in support of her argument that the decision amounts to a blanket prohibition on prosecutors. The Commission noted that it “has concerns that Ms. Taman’s ability to perform her duties in a politically impartial manner as Counsel, working as a federal prosecutor, may be impaired or perceived to be impaired”; “[a]s a federal prosecutor ... Ms. Taman has a high level of autonomy and decision-making”; “[h]is [the DPP’s] concerns relate to … the nature of Ms. Taman’s duties as a federal prosecutor”; and, “Ms Taman is highly visible when she appears in Court as a federal prosecutor.”
[49] The applicant also notes that the concerns raised by the Commission regarding her visibility, autonomy and decision-making power; involvement in plea and sentencing discussions; application for seizure and forfeiture; and possible provision of information to the media as relevant factors would be true of all federal prosecutors.
[50] The applicant submits that the PSEA and the related Political Activities Regulations, SOR/2005-373 [Regulations] are inconsistent with a blanket prohibition based on job title. The PSEA and the Regulations require a fact based and contextual inquiry, including consideration of the nature of the election, the nature of the duties, and the level and visibility of the position. The applicant argues that the Commission failed to “drill down” to look at her duties and instead focussed on federal prosecutors as a broad category.
[51] The applicant also points to the Commission’s reliance on the views of the DPP which related to the nature of the mandate of the ODPP and the nature of the applicant’s duties as a federal prosecutor, rather than on the applicant’s specific duties and the types of prosecutions she conducts. The Commission accepted the DPP’s overall position that being a federal prosecutor is incompatible with being a candidate for public office, without consideration of other views and factors.
[52] The applicant argues that the decision, which amounts to an effective prohibition on federal prosecutors as a category, is by nature disproportionate (Loyola at para 70).
Statutory Context [53] The applicant argues that the decision is inconsistent with the PSEA, the Canada Elections Act and provincial statutes.
[54] Section 112 of the PSEA sets out its purpose and recognizes the right of employees to engage in political activities while maintaining the principle of political neutrality in the public service. The applicant argues, however, that the Commission did not consider her right to engage in political activities. Although the PSEA seeks to balance both interests, the Commission’s starting point and focus was the preservation of political neutrality.
[55] The applicant acknowledges the long standing principle and constitutional convention regarding political neutrality in the public service, but submits that the convention does not trump the Charter rights that should be protected. The jurisprudence which addresses similar issues regarding political neutrality recognizes that political neutrality and duties of loyalty are to be balanced with other rights (Osborne v Canada (Treasury Board), [1991] 2 SCR 69 at p 97, 82 DLR (4th) 321 [Osborne]; Fraser v Canada (Public Service Staff Relations Board), [1985] 2 SCR 455 at pp 467-470, 23 DLR (4th) 122 [Fraser]).
[56] The applicant submits that the test established to determine conflicts of interest for public servants should also apply to decisions made pursuant to subsections 114(4) and (5) of the PSEA. In Threader v Canada (Treasury Board), [1987] 1 FC 41 at para 23, [1986] FCJ No 411 (QL) (FCA) [Threader], the Court stated the test for conflicts of interest as:
Would an informed person, viewing the matter realistically and practically and having thought the matter through, think it more likely than not that the public servant, whether consciously or unconsciously, will be influenced in the performance of his official duties by considerations having to do with his private interests?
[57] The applicant argues that the Commission failed to consider whether a reasonable, fully-informed person would conclude that she would be influenced in the performance of her duties by partisan political considerations and, therefore, made a decision inconsistent with the statutory context of the PSEA. The applicant acknowledges that subsections 114(4) and (5) reflect the concept set out in Threader to some extent but adds that there should be an objective element – the perspective of the fully-informed person – to the provision and the Commission have considered the balancing through this lens.
[58] The applicant provided some historical background about the eligibility of public servants to seek candidacy and election. Originally, County Crown Attorneys and public servants were barred from sitting as members of Parliament. The introduction of the Public Service Employment Act, RSC 1970, c P-32, s 32 in 1968 allowed public servants below the rank of deputy head to run for office with permission. In 2000, the prohibition in the Canada Elections Act on public servants being candidates in a federal election was repealed, leaving the PSEA as the governing statute.
[59] The Canada Elections Act continues to bar County Crown Attorneys from becoming candidates, but by definition, this means the Senior or Regional Crown Attorney and does not include assistant Crown Attorneys, such as the applicant.
[60] The applicant submits that it is clear that Parliament turned its mind to whether certain groups should be prohibited from seeking candidacy and election in the Canada Elections Act. If Parliament intended to prohibit all federal prosecutors from being candidates, it would have also done so in the PSEA.
[61] The applicant also points out that provincial statutes set out class or category based rules for political activity. Generally, in every province except New Brunswick, provincial statutes permit non-managerial prosecutors to run for office.
[62] The applicant argues that, in considering whether the Commission’s decision reflects a proportionate balancing of her Charter rights, the approaches taken in other jurisdictions are relevant considerations, particularly because she is in a non-managerial role and because options to minimally impair her Charter rights should have been considered.
Factual Context [63] The applicant argues that the Commission did not consider several relevant facts in making its decision and in determining whether a fully-informed person would conclude that she would be influenced in the performance of her duties by political considerations.
[64] The applicant highlights that she sought leave without pay in order to seek the nomination and, if successful, to seek election, and would not have been working and performing the duties which the Commission found to be visible, autonomous and of a decision-making nature in this period. There would be no opportunity to create a perception of impartiality given that she would not be working.
[65] The applicant submits that her discretion is carefully circumscribed. Prosecutorial independence does not mean that prosecutors act without supervision or have absolute discretion; it means that the Attorney General must act independently of partisan concerns when supervising prosecutorial decisions (Krieger v Law Society of Alberta, 2002 SCC 65 at para 30, [2002] 3 SCR 372) [Krieger].
[66] The PPSC Deskbook, which sets out the guiding principles which all federal prosecutors, and persons acting as federal prosecutors, must follow, provides that prosecutors are accountable for the decisions and actions they take to their managers, including the Chief Federal Prosecutor, the Deputy Director of Public Prosecutions and, ultimately, the DPP. They must make decisions in accordance with the relevant policy, directives and guidelines. Prosecutors must consult with experienced colleagues and supervisors or managers when facing difficult decisions and consult within government on some matters.
[67] The applicant points to several extracts from the Deskbook, including Chapter 2.1, Independence and Accountability in Decision-Making, which notes that the independence of the prosecutor is that of the DPP, which is delegated to prosecutors, but explains that this refers to institutional independence.
[68] The applicant acknowledges that she would exercise a degree of discretion in the courtroom as issues arise, but would still be guided by the applicable policies and directives set out in the Deskbook.
[69] The applicant also notes that in Krieger at para 29, the Supreme Court of Canada recognized that the Attorney General, although a member of Cabinet, is fully independent when exercising his or her prosecutorial functions. The applicant argues that other prosecutors can be expected to be just as independent.
[70] The applicant also points out that she is in a non-managerial and relatively junior position. She notes that the Supreme Court held that the “level of a public servant” is relevant to whether that public servant should be permitted to engage in a political activity (Osborne at p 97).
[71] The applicant submits that her only interaction with the media was after the Commission’s decision. It was not realistic for the Commission to consider the remote possibility of interaction with the media as a factor suggesting a perception of partiality. In Harquail, the Court found that it is only reasonable for the Commission to conduct its inquiry into an applicant’s responsibilities within some realistic context (at para 35). Moreover, if she were contacted by the media, the Deskbook guides prosecutors to consult with management before speaking to the media.
[72] The applicant adds that there is no evidence that she is “highly visible” and it is not clear what this factor is intended to address. While she would be seen in a public courtroom, this does not suggest lack of partiality and would not constitute “visibility” as contemplated by the PSEA.
[73] The applicant notes that she has not been involved in “politically sensitive” prosecutions. Regulatory prosecutions are not generally politically sensitive. In addition, this risk could be avoided by not assigning politically sensitive files to her.
[74] The applicant adds that there is no evidence of a reasonable apprehension of political partiality or actual harm to the