Read v. Canada (Attorney General)

Read v. Canada (Attorney General)
Court (s) Database
Federal Court of Appeal Decisions
Date
2006-08-22
Neutral citation
2006 FCA 283
File numbers
A-314-05
Notes
Reported Decision
Decision Content
Date: 20060822
Docket: A-314-05
Citation: 2006 FCA 283
CORAM: NOËL J.A.
NADON J.A.
EVANS J.A.
BETWEEN:
ROBERT A. READ
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
Heard at Ottawa, Ontario, on May 3, 2006.
Judgment delivered at Ottawa, Ontario, on August 22, 2006.
REASONS FOR JUDGMENT BY: NADON J.A.
CONCURRED IN BY: NOËL J.A.
EVANS J.A.
Date: 20060822
Docket: A-314-05
Citation: 2006 FCA 283
CORAM: NOËL J.A.
NADON J.A.
EVANS J.A.
BETWEEN:
ROBERT A. READ
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
NADON J.A.
[1] This is an appeal from a decision of Harrington J. of the Federal Court, 2005 FC 798, dated June 2, 2005, which dismissed the appellant’s judicial review application of a decision of Assistant Commissioner Killam of the Royal Canadian Mounted Police (the RCMP).
[2] A RCMP Internal Adjudication Board (the Board) found that allegations of disgraceful conduct made against the appellant, a RCMP Officer, had been established and, hence, it directed that the appellant resign from the RCMP within 15 days, failing which he would be dismissed. Notwithstanding the decision of the RCMP’s External Review Committee, which recommended that the appellant’s appeal of the Board’s finding on the allegations of misconduct be allowed, the Assistant Commissioner concluded that the appellant had breached his duty of loyalty to the RCMP and that there was no justification for that breach. As a result, the Assistant Commissioner upheld the sanction imposed by the Board on the appellant.
[3] At issue in these proceedings is the appellant’s defence of “whistle-blowing”. In other words, was it permissible for the appellant to breach his duty of loyalty to his employer by disclosing confidential documents and information to the media, based on suspicions of wrongdoing on the part of his employer? The Application Judge, at paragraphs 5 and 6 of his Reasons, explained the appellant’s defence in the following terms:
[5] His defence was that he had done no wrong, that he always remained true to his Oaths. He disobeyed the order not to go public because the order was unlawful. His superior officer was a criminal trying to cover up serious wrongdoing and incompetence within Citizenship and Immigration Canada, External Affairs and the RCMP itself.
[6] He thought criminals had infiltrated the computer system in Hong Kong and were able to issue false visas. Our national security was at stake but the RCMP would do nothing to stop it. It was only as a last resort that he spoke to the media in the public interest in order to stamp out this evil and bring criminals to justice.
THE FACTS
[4] Although the facts were carefully and thoroughly reviewed by the Judge below, a brief review thereof remains necessary in order to place the matter in its proper context.
[5] The appellant, Corporal Robert Read, enlisted in the RCMP in 1975. As a result of the events which I shall shortly be relating, he was accused of having divulged classified information and documents to the press in breach of his Oaths of allegiance, of office and of secrecy, and in breach of the RCMP Code of Conduct, as well as having violated an order from a superior officer not to go public with information pertaining to an investigation into suspected criminal activity at the Immigration Section of the Canadian Mission in Hong Kong (the Hong Kong Mission).
[6] In justification of his decision to go public, the appellant relies, inter alia, on the fact that his superiors were attempting to cover-up the wrongdoing which occurred at the Hong Kong Mission. He believes that the issue is one of national security and that disclosure to the media as a last resort was in the public interest, in order to bring attention to suspected corruption and criminal activity.
[7] There were three RCMP investigations into the suspected criminal activity at the Hong Kong Mission between 1991 and 1999. The appellant was assigned to the third investigation on September 4, 1996.
[8] In 1991, the RCMP was alerted to potential security breaches and corruption in the Immigration Section at the Hong Kong Mission. A couple was purportedly contacted by individuals claiming to be employees of the Hong Kong Mission and offered a fast-tracking of their immigration application in exchange for $10,000. Fraudulent visa stamps were also found at the desk of a former employee of the Hong Kong Mission. Finally, two employees of the Hong Kong Mission who had access to the Computer Assisted Immigration Processing System (the CAIPS), were seen depositing a large amount of cash at a bank.
[9] As a result of these allegations, the RCMP began investigating the matter. Sgt. Conohan of the RCMP was sent to Hong Kong, along with David Balser, a security expert with External Affairs (now the Department of Foreign Affairs). This investigation culminated in what is known as the Balser Report, a confidential document which addressed the administrative shortcomings in the CAIPS, a system used, among other things, for the processing of visas.
[10] In the course of the investigation, Sgt. Conohan met with Brian McAdam, an individual who worked in the Immigration Section of the Hong Kong Mission. Mr. McAdam suspected that criminal organizations known as triads had infiltrated the CAIPS with the assistance of someone working at the Hong Kong Mission. Sgt. Conohan subsequently closed the RCMP files, however, as he was unable to identify suspects with respect to the corruption allegations.
[11] In 1993, a second RCMP investigation was initiated, following further allegations of corruption at the Hong Kong Mission. Sgt. Puchniak (later Staff Sergeant Puchniak) interviewed by telephone a number of former Hong Kong Mission employees. He recommended to his superiors that he be allowed to travel to Hong Kong to pursue the investigation, but his recommendation was rejected. Sgt. Puchniak closed the file since, in his view, it was not feasible to interview former employees once they returned to Canada because they would have had by then the opportunity to discuss amongst themselves the matters about which the RCMP intended to question them.
[12] The third investigation commenced in May of 1995, following a complaint by Mr. McAdam of the Hong Kong Mission who had since retired from the foreign service. He had broached the issue with M.P. David Kilgour, then-Deputy Speaker of the House of Commons, who, as a result, requested a public inquiry, which the Minister of Citizenship and Immigration denied. Instead, a third investigation was initiated by the RCMP to determine whether any wrongdoing had occurred.
[13] Inspector Dubé of the RCMP (later a Superintendent) was assigned to the investigation in 1996. He interviewed Mr. McAdam, but found his allegations to be overly broad and the problem most likely solved by the passage of time and the arrival of new employees at the Hong Kong Mission.
[14] Supt. Dubé nonetheless approached the appellant in September 1996 and requested that he review the file and the allegations made by Mr. McAdam. Supt. Dubé soon found that the appellant lacked the necessary objectivity to undertake such an investigation because he drew conclusions unsupported by the evidence and failed to examine other plausible explanations with respect to the issues under investigation. Consequently, on September 2, 1997, Supt. Dubé removed the appellant from the investigation and replaced him with Sgt. Pasin who, on December 3, 1999, submitted his final investigation report.
[15] Following his reassignment, the appellant complained to the RCMP Ethics Advisor that Supt. Dubé and Sgt. Conohan were attempting to cover-up wrongdoing at the Hong Kong Mission. That complaint was dismissed. Moreover, in January 1999, the appellant complained to the Office of the Auditor General, which issued a report criticizing the lack of security measures in the immigration system.
[16] Supt. Dubé contacted the appellant in 1999 directing him not to discuss the investigation with the media. At the same time, Supt. Dubé questioned the appellant regarding a missing box of documents. Following this exchange and a meeting with Sgt. Pasin regarding the missing box of documents, Supt. Dubé requested an investigation into the appellant’s conduct with respect to classified information which he believed the appellant had disclosed to Mr. McAdam and to the appellant’s failure to cooperate with the continuing RCMP investigation. However, the request for an investigation was denied due to the fact that Supt. Dubé was no longer the appellant’s line officer.
[17] The appellant contacted the media following these events to express his concern over the RCMP’s handling of the investigations. He provided journalists with the Balser Report, a classified document, as well as other investigative reports. He also provided the media with a copy of his complaint to the RCMP Public Complaints Commission (the PCC) wherein he complained that senior members of the RCMP had failed to investigate corruption at the Hong Kong Mission. The complaint contained several classified documents relating to the Hong Kong investigation, including the Balser Report. Approximately 50 newspaper articles and TV broadcasts resulted from the appellant’s disclosure. As an example, the following appeared, in part, in the Vancouver Province of August 26, 1999:
‘A breach of national security’
Files at Canada’s diplomatic mission in Hong Kong were infiltrated
Fabian Dawson, Staff Report, The Province
Chinese nationals linked to organized crime have broken into the immigration computer at Canada’s diplomatic mission in Hong Kong, classified documents obtained by The Province allege.
At least 788 files from the Computer-Assisted Immigration Processing System (CAIPS) were deleted, and up to 2,000 blank visa forms have disappeared, according to the documents.
The core allegations are:
§ That certain people paid locally engaged staff of the Canadian commission (now the consulate-general) to delete their backgrounds in the computer system to hide their links with triads – the Chinese Mafia.
§ That the visa forms have been used by possibly hundreds of people, including criminals, to enter Canada illegally.
For seven years, the RCMP, Immigration Canada and the Department of External Affairs are alleged to have kept a lid on the case, unwilling to reveal the extent of what several sources call a “breach of national security.”
Two key figures in the investigation suspect the RCMP is covering up criminal acts and negligence at Canada’s immigration office in Hong Kong.
Details of the case are contained in reports filed by Robert Read, an RCMP corporal in Ottawa, and Brian McAdam, a former immigration control officer at the Canadian commission in Hong Kong.
“I believe there has been a massive conspiracy to cover up the whole issue,” Read said.
In a report marked Top Secret, he wrote: “The loss of control of CAIPS … loss of control over immigration from Hong Kong … from 1986 to 1992 is a most serious breach of national security.”
Read, who has written orders from his boss, Insp. Jean Dubé, not to talk to the media, told The Province: “I am going public because there needs to be a public inquiry into this whole thing.”
…
“If the RCMP does tell the government that a disaster has occurred,” said Read, “the government cannot decide how to react to it, cannot decide what to tell the people of Canada what has occurred.
“They have Balser’s report, McAdam’s testimony, the missing files in Hong Kong … and my report”.
“Why won’t they do anything?”
[Emphasis added]
[18] On September 10, 1999, RCMP Commissioner Zaccardelli requested an administrative file review of the appellant’s allegations of corruption at the Hong Kong Mission, as well as his allegations of wrongdoing by senior RCMP officers.
[19] The administrative file review was conducted by three officers of the RCMP who had had no involvement in the Hong Kong investigations. They issued their report on October 4, 1999, and found no evidence of a cover-up or obstruction by members of the RCMP or by employees of Citizenship and Immigration Canada (CIC).
[20] On August 11, 2000, the RCMP commenced disciplinary proceedings against the appellant and, on May 31, 2002, the Board concluded that the appellant’s conduct was disgraceful and recommended that he be dismissed from the Force. In so concluding, the Board held that the appellant’s defence of whistle-blowing was not made out.
[21] As a result of the Board’s decision, the appellant, pursuant to subsection 45.14(1) of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 (the Act), appealed the matter to the Commissioner of the RCMP. As prescribed by subsection 45.15(1) of the Act, the Commissioner referred the appellant’s case to the RCMP’s External Review Committee (the Review Committee) which concluded, on September 10, 2003, that the appellant’s disclosure concerned a matter of public interest because the RCMP had failed to take appropriate actions with respect to the allegations of corruption at the Hong Kong Mission. As a result, the Review Committee recommended that his appeal from the Board’s findings on the allegations of misconduct be allowed.
[22] Following the decision of the Review Committee, the appeal remained for consideration by the Commissioner, pursuant to subsection 45.16(1) of the Act. However, by reason of his prior involvement in the appellant’s case, the Commissioner determined that he was unable to adjudicate the appeal. As a result, pursuant to subsection 15(2) of the Act, the appellant’s appeal was heard by Assistant Commissioner Tim Killam who, on January 15, 2004, dismissed his appeal, thereby upholding the Board’s finding of disgraceful conduct and directing that the appellant be dismissed. In so concluding, the Assistant Commissioner could not agree with the Review Committee’s recommendation.
[23] On February 20, 2004, the appellant commenced judicial review proceedings seeking to set aside Assistant Commissioner Killam’s decision. On June 2, 2005, Harrington J. dismissed his application. Paragraph 142 of the learned Application Judge’s Reasons encapsulates well his rationale in dismissing the appellant’s proceedings:
[142] Cpl. Read owed a duty of loyalty to the RCMP. He made public classified documentation and information in breach of that duty. His "whistle-blowing" defence is not made out in this case. There simply was not enough evidence to lend credence to his allegations. The restrictions on his right to speak out, as long established at common law and as set out in the Royal Canadian Mounted Police Act and regulations thereunder, are reasonable within the context of section 1 of the Charter. The need for an impartial and effective police force prevails. The decision of Asst. Commissioner Killam that Cpl. Read breached the RCMP Code of Ethics stands up to judicial review, as does the sanction that he be dismissed from the Force.
[Emphasis added]
[24] The appellant seeks to overturn Harrington J.’s decision and to set aside the Assistant Commissioner’s decision.
LEGISLATION
[25] The following provisions of the Act and of the Royal Canadian Mounted Police Regulations, 1998, are relevant to the issues before us and I therefore reproduce them:
THE ACT
38. The Governor in Council may make regulations, to be known as the Code of Conduct, governing the conduct of members.
…
43. (1) Subject to subsections (7) and (8), where it appears to an appropriate officer that a member has contravened the Code of Conduct and the appropriate officer is of the opinion that, having regard to the gravity of the contravention and to the surrounding circumstances, informal disciplinary action under section 41 would not be sufficient if the contravention were established, the appropriate officer shall initiate a hearing into the alleged contravention and notify the officer designated by the Commissioner for the purposes of this section of that decision.
(2) On being notified pursuant to subsection (1), the designated officer shall appoint three officers as members of an adjudication board to conduct the hearing and shall notify the appropriate officer of the appointments.
(3) At least one of the officers appointed as a member of an adjudication board shall be a graduate of a school of law recognized by the law society of any province.
...
45.12 (1) After considering the evidence submitted at the hearing, the adjudication board shall decide whether or not each allegation of contravention of the Code of Conduct contained in the notice of the hearing is established on a balance of probabilities.
(2) A decision of an adjudication board shall be recorded in writing and shall include a statement of the findings of the board on questions of fact material to the decision, reasons for the decision and a statement of the sanction, if any, imposed under subsection (3) or the informal disciplinary action, if any, taken under subsection (4).
(3) Where an adjudication board decides that an allegation of contravention of the Code of Conduct by a member is established, the board shall impose any one or more of the following sanctions on the member, namely,
(a) recommendation for dismissal from the Force, if the member is an officer, or dismissal from the Force, if the member is not an officer;
(b) direction to resign from the Force and, in default of resigning within fourteen days after being directed to do so, recommendation for dismissal from the Force, if the member is an officer, or dismissal from the Force, if the member is not an officer;
…
45.14 (1) Subject to this section, a party to a hearing before an adjudication board may appeal the decision of the board to the Commissioner in respect of
(a) any finding by the board that an allegation of contravention of the Code of Conduct by the member is established or not established; or
(b) any sanction imposed or action taken by the board in consequence of a finding by the board that an allegation referred to in paragraph (a) is established.
…
45.15 (1) Before the Commissioner considers an appeal under section 45.14, the Commissioner shall refer the case to the Committee.
…
45.16 (1) The Commissioner shall consider an appeal under section 45.14 on the basis of
(a) the record of the hearing before the adjudication board whose decision is being appealed,
(b) the statement of appeal, and
(c) any written submissions made to the Commissioner,
and the Commissioner shall also take into consideration the findings or recommendations set out in the report, if any, of the Committee or the Committee Chairman in respect of the case.
(2) The Commissioner may dispose of an appeal in respect of a finding referred to in paragraph 45.14(1)(a) by
(a) dismissing the appeal and confirming the decision being appealed;
(b) allowing the appeal and ordering a new hearing into the allegation giving rise to the finding; or
(c) where the appeal is taken by the member who was found to have contravened the Code of Conduct, allowing the appeal and making the finding that, in the Commissioner's opinion, the adjudication board should have made.
(3) The Commissioner may dispose of an appeal in respect of a sanction or action referred to in paragraph 45.14(1)(b) by
(a) dismissing the appeal and confirming the decision being appealed; or
(b) allowing the appeal and either varying or rescinding the sanction or action.
…
(6) The Commissioner is not bound to act on any findings or recommendations set out in a report with respect to a case referred to the Committee under section 45.15, but if the Commissioner does not so act, the Commissioner shall include in the decision on the appeal the reasons for not so acting.
(7) A decision of the Commissioner on an appeal under section 45.14 is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal to or review by any court.
THE REGULATIONS
37. Sections 38 to 58.7 constitute the Code of Conduct governing the conduct of members.
…
39. (1) A member shall not engage in any disgraceful or disorderly act or conduct that could bring discredit on the Force.
(2) Without restricting the generality of the foregoing, an act or a conduct of a member is a disgraceful act or conduct where the act or conduct
(a) is prejudicial to the impartial performance of the member's duties; or
(b) results in a finding that the member is guilty of an indictable offence or an offence punishable on summary conviction under an Act of Parliament or of the legislature of a province.
40. A member shall obey every lawful order, oral or written, of any member who is superior in rank or who has authority over that member.
41. A member shall not publicly criticize, ridicule, petition or complain about the administration, operation, objectives or policies of the Force, unless authorized by law.
LA LOI
38. Le gouverneur en conseil peut prendre des règlements, appelés code de déontologie, pour régir la conduite des membres.
…
43. (1) Sous réserve des paragraphes (7) et (8), lorsqu'il apparaît à un officier compétent qu'un membre a contrevenu au code de déontologie et qu'eu égard à la gravité de la contravention et aux circonstances, les mesures disciplinaires simples visées à l'article 41 ne seraient pas suffisantes si la contravention était établie, il convoque une audience pour enquêter sur la contravention présumée et fait part de sa décision à l'officier désigné par le commissaire pour l'application du présent article.
(2) Dès qu'il est avisé de cette décision, l'officier désigné nomme trois officiers à titre de membres d'un comité d'arbitrage pour tenir l'audience et en avise l'officier compétent.
(3) Au moins un des trois officiers du comité d'arbitrage est un diplômé d'une école de droit reconnue par le barreau d'une province.
…
45.12 (1) Le comité d'arbitrage décide si les éléments de preuve produits à l'audience établissent selon la prépondérance des probabilités chacune des contraventions alléguées au code de déontologie énoncées dans l'avis d'audience.
(2) La décision du comité d'arbitrage est consignée par écrit; elle comprend notamment l'exposé de ses conclusions sur les questions de fait essentielles à la décision, les motifs de la décision et l'énoncé, le cas échéant, de la peine imposée en vertu du paragraphe (3) ou de la mesure disciplinaire simple prise en vertu du paragraphe (4).
(3) Si le comité d'arbitrage décide qu'un membre a contrevenu au code de déontologie, il lui impose une ou plusieurs des peines suivantes :
a) recommander que le membre soit congédié de la Gendarmerie, s'il est officier, ou, s'il ne l'est pas, le congédier de la Gendarmerie;
b) ordonner au membre de démissionner de la Gendarmerie, et si ce dernier ne s'exécute pas dans les quatorze jours suivants, prendre à son égard la mesure visée à l'alinéa a);
…
45.14 (1) Sous réserve des autres dispositions du présent article, toute partie à une audience tenue devant un comité d'arbitrage peut en appeler de la décision de ce dernier devant le commissaire :
a) soit en ce qui concerne la conclusion selon laquelle est établie ou non, selon le cas, une contravention alléguée au code de déontologie;
b) soit en ce qui concerne toute peine ou mesure imposée par le comité après avoir conclu que l'allégation visée à l'alinéa a) est établie.
…
45.15 (1) Avant d'étudier l'appel visé à l'article 45.14, le commissaire le renvoie devant le Comité.
…
45.16 (1) Le commissaire étudie l'affaire portée en appel devant lui en vertu de l'article 45.14 en se fondant sur les documents suivants :
a) le dossier de l'audience tenue devant le comité d'arbitrage dont la décision est portée en appel;
b) le mémoire d'appel;
c) les argumentations écrites qui lui ont été soumises.
Il tient également compte, s'il y a lieu, des conclusions ou des recommandations exposées dans le rapport du Comité ou de son président.
45.16(2) Décisions rendues en appel
(2) Le commissaire, lorsqu'il est saisi d'un appel interjeté contre la conclusion visée à l'alinéa 45.14 (1)a), peut :
a) soit rejeter l'appel et confirmer la décision portée en appel;
b) soit accueillir l'appel et ordonner la tenue d'une nouvelle audience portant sur l'allégation qui a donné lieu à la conclusion contestée;
c) soit accueillir l'appel, s'il est interjeté par le membre reconnu coupable d'une contravention au code de déontologie, et rendre la conclusion que, selon lui, le comité d'arbitrage aurait dû rendre.
45.16(3) Décision concernant une sanction
(3) Le commissaire, lorsqu'il est saisi d'un appel interjeté contre la peine ou la mesure visée à l'alinéa 45.14(1)b), peut :
a) soit rejeter l'appel et confirmer la décision portée en appel;
b) soit accueillir l'appel et modifier la peine ou la mesure imposée.
…
(6) Le commissaire n'est pas lié par les conclusions ou les recommandations contenues dans un rapport portant sur une affaire qui a été renvoyée devant le Comité conformément à l'article 45.15; s'il choisit de s'en écarter, il doit toutefois motiver son choix dans sa décision.
(7) La décision du commissaire portant sur un appel interjeté en vertu de l'article 45.14 est définitive et exécutoire et, sous réserve du contrôle judiciaire prévu par la Loi sur les Cours fédérales, n'est pas susceptible d'appel ou de révision en justice.
LE RÈGLEMENT
37. Les articles 38 à 58.7 constituent le code de déontologie régissant la conduite des membres.
…
39. (1) Le membre ne peut agir ni se comporter d'une façon scandaleuse ou désordonnée qui jetterait le discrédit sur la Gendarmerie.
(2) Le membre agit ou se comporte de façon scandaleuse lorsque, notamment
a) ses actes ou son comportement l'empêchent de remplir ses fonctions avec impartialité;
b) à cause de ses actes ou de son comportement, il est trouvé coupable d'un acte criminel ou d'une infraction punissable par procédure sommaire tombant sous le coup d'une loi fédérale ou provinciale. DORS/94-219, art. 15.
40. Le membre doit obéir aux ordres légitimes — verbaux ou écrits — de tout membre qui lui est supérieur en grade ou qui a autorité sur lui. DORS/94-219, art. 16.
41. Le membre ne peut publiquement critiquer, railler ou contester l'administration, le fonctionnement, les objectifs ou les politiques de la Gendarmerie, ni s'en plaindre publiquement, à moins qu'il n'y soit autorisé par la loi.
[26] Also of relevance is subsection 2(b) of the Canadian Charter of Rights and Freedom, Part I of the Constitution Act, 1982, Schedule B to the Canada Act
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;
2. Chacun a les libertés fondamentales suivantes :
…
b) liberté de pensée, de croyance, d'opinion et d'expression, y compris la liberté de la presse et des autres moyens de communication;
THE ISSUES
[27] The issue in this appeal is whether the Application Judge erred in dismissing the appellant’s judicial review proceedings. More particularly, did the learned Judge err in concluding that the appellant’s defence of “whistle-blowing” was not made out? In broader terms, the appeal raises an issue as to the balance which must be struck between an employee’s duty of loyalty to his employer and his constitutional right to freedom of expression, as guaranteed by subsection 2(b) of the Charter.
THE RELEVANT JURISPRUDENCE
[28] Before reviewing Assistant Commissioner Killam’s decision, I shall examine the jurisprudence pertaining to a public servant’s duty of loyalty to his employer.
[29] The parties are in agreement that the appellant’s duty of loyalty to his employer limits his freedom of expression as guaranteed by subsection 2(b) of the Charter. There is a dispute, however, as to where the line should be drawn between these competing values.
[30] A review of the case law necessarily begins with the Supreme Court of Canada’s decision in Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455, where Dickson C.J. enunciated the principles which, to this day, constitute the frame of reference whenever a defence of “whistle-blowing” is raised.
[31] At issue in Fraser, supra, was the right of a public servant, an employee of Revenue Canada, to publicly criticize the Federal Government’s policies concerning metrification and the constitutional entrenchment of a charter of rights. Dickson C.J. formulated the guiding principle as follows: although public servants must be loyal to their employer, they could, in certain circumstances, express publicly their opposition to the Government’s policies. In other words, the Chief Justice was of the view that it would not be sensible to prohibit outright public servants from criticizing the Government. Thus, for Dickson C.J., the real question at issue was the drawing of the line between competing values.
[32] Before setting out those circumstances which, in his view, would allow a public servant to criticize or oppose Government policies, Dickson C.J. pointed to the fact that employment in the public service had two dimensions, namely, one relating to an employee’s tasks and how the employee performed them, and the other relating to the public’s perception of the job.
[33] In the case before him, Dickson C.J. approved the Adjudicator’s finding that Mr. Fraser’s criticisms of the Government’s policies “were job-related” (Fraser, supra, p. 469). The importance of this finding, in his view, stemmed from the fact that an impartial and effective public service was important and necessary, considering that the federal public service was part of the Executive Branch of Government, whose task was to administer and implement the Government’s policies. Hence, it was important for the public service to employ people who were knowledgeable, fair, honest and impartial.
[34] The Chief Justice then went on to say that a further characteristic required of public servants was loyalty. In making that observation, he formulated the principle which is at the centre of the debate before us. At page 470, Dickson C.J. stated:
As the Adjudicator indicated, a further characteristic is loyalty. As a general rule, federal public servants should be loyal to their employer, the Government of Canada. The loyalty owed is to the Government of Canada, not the political party in power at any one time. A public servant need not vote for the governing party. Nor need he or she publicly espouse its policies. And indeed, in some circumstances a public servant may actively and publicly express opposition to the policies of a government. This would be appropriate if, for example, the Government were engaged in illegal acts, or if its policies jeopardized the life, health or safety of the public servant or others, or if the public servant's criticism had no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability. But, having stated these qualifications (and there may be others), it is my view that a public servant must not engage, as the appellant did in the present case, in sustained and highly visible attacks on major Government policies. In conducting himself in this way the appellant, in my view, displayed a lack of loyalty to the Government that was inconsistent with his duties as an employee of the Government.
[Emphasis added]
[35] Dickson C.J. then explained why it was important, if not crucial, to ensure that public servants remained loyal to their employer, i.e., that it was in the public interest to maintain an impartial public service. At pages 470 and 471, he put it as follows:
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. […]
There is in Canada, in my opinion, a similar tradition [to that of England] 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 employment in the public service involves acceptance of certain restraints. One of the most important of those restraints is to exercise caution when it comes to making criticisms of the Government.
[Emphasis added]
[36] One last point from the Fraser, supra, decision deserves mention. In concluding as he did, Dickson C.J. made it clear that the determination of the degree of restraint to which a public servant would be held was “relative to the position and visibility of the civil servant” (see p. 466).
[37] I now turn to a number of decisions rendered by the Federal Court and by this Court. In Haydon v. Canada, [2001] 2 F.C. 8 (Haydon No. 1), the employees, drug evaluators in the Pharmaceutical Assessment Division of the Bureau of Veterinary Drugs, Food Directorate, Health Protection Branch of Health Canada, gave interviews on Canada AM, a national television program on the CTV network, during which they expressed serious concerns with respect to their employer’s drug review process and the impact thereof on the health of Canadians. Both employees were reprimanded by their employer, who concluded that they had breached their duty of loyalty. The employees filed grievances which ultimately reached the Associate Deputy Minister, who denied them. The Assistant Deputy Minister concluded that although public servants enjoyed freedom of expression and could participate in public discussions of public issues, there were limits to their freedom of expression, which included their duty of loyalty to their employer.
[38] The employees commenced judicial review proceedings in the Federal Court. On September 5, 2000, Madam Justice Tremblay-Lamer allowed their application on the ground that their public criticism fell within the “public health and safety” exceptions set forth in Fraser, supra. In so concluding, the learned Judge commented as follows, at paragraph 83, on the exceptions to the common law duty of loyalty formulated by Dickson C.J. in Fraser, supra.:
[83] In my opinion, these exceptions embrace matters of public concern. They ensure that the duty of loyalty impairs the freedom of expression as little as reasonably possible in order to achieve the objective of an impartial and effective public service. Where a matter is of legitimate public concern requiring a public debate, the duty of loyalty cannot be absolute to the extent of preventing public disclosure by a government official. The common law duty of loyalty does not impose unquestioning silence. As explained in Fraser, the duty of loyalty is qualified: "[...] some speech by public servants concerning public issues is permitted." It is my understanding that these exceptions to the common law rule may be justified wherever the public interest is served. In this regard, the importance of the public interest in disclosure of wrongdoing, referred to as "the defence of whistleblowing", has been recognized in other jurisdictions as an exception to the common law duty of loyalty.
[Emphasis added]
[39] I should point out that at paragraph 89 of her Reasons, Madam Justice Tremblay-Lamer, after a careful section 1 analysis based on the test set out in The Queen v. Oakes, [1986] 1 S.C.R. 103, concluded that the common law duty of loyalty, as enunciated in Fraser, supra, “… sufficiently accommodates the freedom of expression as guaranteed by the Charter, and therefore constitutes a reasonable limit within the meaning of section 1 of the Charter”.
[40] A more recent decision is this Court’s decision in Haydon v. Canada (Treasury Board), 2005 FCA 249, dated June 30, 2005 (Haydon No. 2). The employee, Dr. Haydon, a veterinarian employed by Health Canada as a drug evaluator, was suspended for ten working days by her employer for comments attributed to her in a newspaper article which appeared in the Globe and Mail.
[41] She filed a grievance requesting, inter alia, that her suspension be rescinded and that she be reimbursed all lost salary and benefits. Before the Adjudicator, Dr. Haydon argued that by reason of her Charter rights, she was entitled to make her views known to the public. The Adjudicator dismissed her argument on the ground that she had made no attempt to resolve her concerns through the appropriate internal channels, adding that if he were wrong on that point, he would have concluded that Dr. Haydon’s statement to the press did not fall within the exceptions to the duty of loyalty as formulated in Fraser, supra, because her statement did not relate to health and safety.
[42] Dr. Haydon then commenced judicial review proceedings before the Federal Court. On May 21, 2004, Martineau J. concluded that the Adjudicator had not erred in finding that Dr. Haydon had breached her duty of loyalty and that the ten-day suspension was justified. In concluding as he did, Martineau J., at paragraph 49 of his Reasons, outlined the factors which, in his view, were relevant to a determination of whether or not a public servant had breached her duty of loyalty in publicly criticizing her employer:
[49] In light of the above, the following factors are relevant in determining whether or not a public service employee who makes a public criticism breaches his or her duty of loyalty towards the employer: the working level of the employee within the Government hierarchy; the nature and content of the expression; the visibility of the expression; the sensitivity of the issue discussed; the truth of the statement made; the steps taken by the employee to determine the facts before speaking; the efforts made by the employee to raise his or her concerns with the employer; the extent to which the employer's reputation was damaged; and the impact on the employer's ability to conduct business.
[Emphasis added]
[43] On appeal to this Court, Dr. Haydon argued that Martineau J. had erred in concluding that her employer had just and sufficient cause to suspend her. After carefully reviewing the governing principles as enunciated in Fraser, supra, and Haydon No. 1, Desjardins J.A., writing for the Court, concluded that the learned Judge had made no error. She expressed her view in the following way, at paragraph 40:
The adjudicator found that in stating that there was no difference in risk between Brazilian beef and Canadian beef, the appellant's comments did not fall within the exceptions to the duty of loyalty recognized in Fraser. She was not denouncing a policy which jeopardized the life, health or safety of Canadians. She was commenting on the decision of the CFIA, which she felt was a political move. The Federal Court judge, at paragraph 69 of his reasons, found that the adjudicator did not err in law and that his decision was one that could reasonably have been made based on the evidence on the record. The Federal Court judge held that this was not a case of "whistleblowing". In his view, the appellant's reported statements did not involve public interest issues of the same order as in Haydon No. 1. They did not address pressing issues such as jeopardy to public health and safety (or government illegality). Moreover, he wrote, the evidence revealed that the appellant did not check her facts nor did she raise her concern internally before speaking to The Globe and Mail. Her statements did not appear to be accurate. They nevertheless carried significant weight because she was a scientist. Her comments had an adverse impact on the operations of the Government of Canada. As a result, he said, the adjudicator made no reviewable error neither on a standard of patent unreasonableness nor on a standard of reasonableness. I find no error in that conclusion.
[Emphasis added]
[44] In concluding as she did, Madam