Political Activities of Public Servants

Judgement of the Supreme Court of Canada
Public Service Commission v. Millar, Osborne and others
Section 33 of the Public Service Employment Act

In 1986 a number of employees asked the Trial Division of the Federal Court to set aside section 33 (formerly section 32) of the Public Service Employment Act. Among other things, this section prohibited employees and deputy heads from engaging in work for or against a candidate or political party. Their ground was that section 33 was contrary to the Canadian Charter of Rights and Freedoms.

Since they were not successful, they appealed to the Federal Court of Appeal and in June 1988, that Court struck down paragraphs 33(1)(a) and (b) with respect to public servants - it still applied to deputy heads. The reason given by the Court for its judgment was that the wording in these paragraphs was vague and open to discretionary application.

The Public Service Commission appealed to the Supreme Court of Canada and its judgment, handed down on June 6, 1991, confirmed the judgment of the Federal Court of Appeal.

The Supreme Court

In its judgment, the Supreme Court

• ruled that the prohibition against public servants working for or against a candidate or political party violated their freedom of expression as set out in section 2(b) of the Charter;
• recognized the importance of the political neutrality of the Public Service and of public servants;
• stated that the present provision, in banning political activities without distinction and without regard for the nature of the work performed by the public servant, went further than necessary;
• stated that legislation could be enacted limiting the political activities of public servants and gave some indication of how future legislation might be framed in order to achieve the objective of a neutral Public Service.

Although the Supreme Court alluded to Section 33 in its entirety, it maintained the judgment of the Federal Court of Appeal, setting aside paragraphs 33(1)(a) and (b) except with respect to deputy heads.

Consequences of the Judgment for Public Servants

1. The statutory prohibition in the Public Service Employment Act against working for or against a candidate or a political party has no force.
2. At the same time, employees should be aware that the principle of a politically neutral Public Service remains intact. Therefore, in engaging in political activities, they should exercise judgment and consider their specific circumstances, particularly with due regard to the loyalty they owe to the Government and to their obligation to act, and be seen to act, impartially when dealing with the public.
3. The option available under subsection 33(3) of the Public Service Employment Act to obtain leave without pay from the Public Service Commission to seek nomination to be a candidate and to be a candidate for election still applies.
4. The judgment did not deal at length with the expression of specific political views or criticism of government policy. On such issues, the Supreme Court's decision in the Neil Fraser case in 1985 should be consulted.

New Legislation

Should the Government decide to proceed with new legislation, public servants will be advised accordingly.

For Further Information

For further information on applications for leave to be a candidate or to obtain an alternate format of this fact sheet, contact Lynn Nessrallah at (613) 996-4866, fax (613) 992-5430, e-mail: lynn.nessrallah@psc-cfp.gc.ca