Loyalty Oaths and the Public Service

What Happened

Federal public servants have long been required to be loyal and impartial government employees. This is because as a part of the executive branch of government, they have a responsibility to implement government policies and laws. At the same time, public servants also play a unique part in Canada’s democracy by ensuring that government is transparent, accountable, and that the government’s decisions are made in the public interest. In certain circumstances, these duties of loyalty to the government and protecting the public interest can conflict. In the past, federal legislation and ethics codes emphasised the public interest over government loyalty. However, in 2012 the federal government began to reverse this balance, despite the fact that doing so was inconsistent with decades of legal precedent from the Supreme Court of Canada. The impact of these changes have also threatened public servant’ Charter rights to freedom of expression and association.

Since 2012, the federal government instituted a series of legislative and policy changes that threatened the unique role of the public service in Canada’s democracy. These changes included a revision of the Values and Ethics Code for the Public Service, the introduction of Bill C-520, policies preventing public servants from speaking directly to the press, as well as limiting their private use of social media and involvement in federal elections. Such far-reaching attempts to silence the public service has raised several concerns with respect to civil servants’ Charter rights as well as their unique and important role in promoting a healthy Canadian democracy.


Background

Public servants owe a duty of loyalty to the government and also have a duty to ensure that government is transparent, accountable, and making decisions in the public interest. In addition to these two duties, individual public servants have rights to freedom of expression and freedom of association under the Canadian Charter of Rights and Freedoms (the Charter).

While some tensions can sometimes arise between these professional duties and Charter rights, the Supreme Court of Canada has provided important guidance for how these rights and duties should be balanced and understood.

The Supreme Court’s decisions on this issue: Fraser and Osbourne decisions

In a 1985 case called Fraser, the Supreme Court considered whether a public service employee could be dismissed from his position with Revenue Canada because he repeatedly and publicly spoke out against several government policies. While the original case was decided in 1982, before the Charter came into force, the Court sought to integrate the “right of an individual [public servant], as a member of the Canadian democratic community, to speak freely without inhibition on important issues” with “the duty of an individual qua federal public servant, to fulfil properly his or her functions as an employee of the Government of Canada” (para 1).

In its unanimous judgment, the Court struck down the federal legislation that prohibited public servants from engaging in any political activity, noting they must not be “silent members of society”. The Court explained, three reasons such a prohibition would be unconstitutional: 1) “our democratic system is deeply rooted in, and thrives on, free and robust public discussion of public issues. As a general rule, all members of society should be permitted, indeed encouraged, to participate in that discussion”; 2) given that the public service has grown so substantially in recent times, a total denial of public servants’ free speech would deny this right to too many people; and 3) such a far-reaching prohibition would just be “contrary to common sense”. (paras 40 - 43)

At the same time, the Court cautioned that public servants’ freedom of expression was not absolute. Rather, the degree of restraint on this point would depend on the position and visibility of the individual public servant. It explained, the public service is part of the executive branch of government. As such, it is tasked with administering and implementing policies enacted by the legislature. To do this well, public servants needed to be knowledgeable, impartial, neutral, fair, and to have integrity. They also needed to be loyal to the Government of Canada, though the Court distinguished this from any expectation of loyalty to the governing political party at the time.

Six years after the Fraser decision, the Supreme Court affirmed its principles in a decision called Osbourne. This was another unanimous judgment in which the Court found that a provision preventing all public servants from engaging in work for or against any political party or candidate for office was unconstitutional. The Court noted that the Fraser decision, regardless of the fact that it was decided before the Charter came into force, was still good law and that Charter rights were constitutionally entrenched for everyone, including public servants.

In 2005, the federal government passed the Public Service Employment Act (PSEA) in which it drafted guidelines for public servants’ conduct that would be consistent with the Court’s earlier directions. It explained, “an employee may engage in any political activity so long as it does not impair, or is not perceived as impairing, the employee’s ability to perform his or her duties in a politically impartial manner.” (s. 113) “Political activity” was defined as supporting or opposing a political party or candidate for office, or seeking nomination for party office. (s. 111)

These guidelines contained several clauses that emphasized the public service’s role in ensuring government is accountable and transparent. Public servants were to promote public participation, openness, and communication, as well as respect for Canadian diversity in performing their professional duties. They were required to provide their services to government with neutrality and impartiality, and consider both the “ends and means”, or process and outcome, of their work when implementing government policy. Importantly, the Code also explained that all public servants’ official duties and responsibilities must be undertaken in the public interest.

The Code was primarily focused on professional duties of public servants rather than their conduct outside the workplace. The exception to this was one clause in the Code, which specified that all individuals were required to “arrange their private lives in a way that promoted public confidence in the integrity and impartiality of government”. Again, the term government in this context was broad and did not mean the political party in power.

A Change of tone

However, by 2007 the then newly elected federal government began to clamp down on public servants’ free speech. It imposed a new media relations policy on government scientists, preventing them from speaking at conferences, to the media or to the public, unless the content was vetted in advance by officials. This policy had a chilling effect as there was subsequently an 80 per cent decrease in media coverage of climate change and fewer scientists speaking to the media or in academic contexts. This clamp down was also a sign of more things to come.

2012 Values and Ethics Code for the Public Sector

In April 2012 the federal government instituted a new Values and Ethics Code for the Public Sector, which significantly changed government’s expectations of the public service, curtailing their professional independence and their Charter rights. The new Code had far-reaching impacts as it served as the template from which all other federal departments drafted their own codes of ethics.

While the previous 2005 Code’s language was specific and directive, the new Code is a much vaguer, merely listing a series of “values” and remaining silent with regards to how they are to be implemented or enforced.

Worryingly, the new Code removed all references in the previous 2005 version to the importance of accountability and transparency in government. It also removed all references to the paramountcy of the public interest and omitted the previous Code’s clause stressing equal importance of ends and means in implementing government policy.

The new Code removed the requirement for public servants to arrange their professional and private matters in a way that promoted confidence in the integrity and impartiality of government. Instead, it introduced a new clause requiring all civil servants to be loyal to their “employer”, and another new clause that required public servants to act in a way that “maintains their employer’s trust”. The vagueness of these new clauses make them especially troubling: are they meant to apply to public servants in the professional capacity or in their private lives as well? Is the “employer” referred to in these clauses the government, or specific elected political parties or officials?

The neutrality of the public service was further undermined when the clause in the 2005 Code requiring appointments and recruitment of public servants to be based on professional merit were replaced with a clause specifying that “public service values should play a key role in recruitment, evaluation, and promotion of public servants”. Again, the vagueness of the values and the removal of merit as the most important factor to consider when recruiting or promoting public servants is disturbing.

The 2012 changes to the Code demonstrate an erosion of the previously mandatory guidelines the federal government had enacted to ensure public servants could effectively balance their professional duties and also be able to exercise their Charter rights as the Supreme Court of Canada required. Not only was the impartiality and professionalism of the public service undermined by the new Code, the vagueness of the Code’s language raises concerns about the broad discretion of those implementing its provisions and the impact all this could have on public servant’s ability to freely associate and express themselves as important participants in Canada’s democracy.

These fears were realized when the 2012 Code paved the way for several other departments’ draconian codes of conduct. One example of this was the new Code of Conduct, Values and Ethics for Library and Archives Canada (LAC) which limited employees’ ability to communicate with the public and required them to “demonstrate loyalty” to elected officials both on and off duty. It specified that as public servants, LAC employees “must use caution when making public comments, expressing personal opinions or taking actions that could damage LAC’s reputation, the public service, or Government of Canada”.

By 2014, the federal Political Activities and non-Partisanship Directorate of the Public Services Commission prepared a Guidance Document for Participating in Non-Candidacy Political Activities for all public servants. This guidance document was meant to provide further direction to public servants to ensure that they conformed with provisions in the federal 2012 Code of Conduct.

It listed several types of activity which were permitted in principle: volunteering for a candidate of a political party, displaying lawn signs or badges of a candidate, attending political meetings, events, demonstrations in support or opposition to a candidate or political party, developing promotional material such as campaign speeches or pamphlets for a candidate or political party, using blogs, social networking sites, personal websites or video sharing to express personal views in support or opposition to a candidate or political party. (pp 3-4) However, it warned that these activities were subject to an extensive series of restrictions.

First, these activities had to be pursued outside of business hours. Second, the nature of the political activity, nature of the public servant’s duties, their level of visibility, and their personal visibility would all be considered when determining whether their political activity is permissible or whether they could be subject to disciplinary action or dismissal. Third, the document focused on clamping down on public servants’ use of social media in their professional and private lives. It asserted that “due to its immediacy and far reach, social media content can blur the distinction between public servants’ professional and private lives”.(p 4) As such, public servants were required to think twice before using social media to speak out against elected government or policies, ensuring that all use was consistent with government guidelines.

Rather than simply clarifying the 2012 Code, these guidelines further encroached on public servants’ Charter rights as well as their important democratic role.

Bill C-520

In 2013, a private member’s bill was proposed in the House of Commons “to avoid conflicts that are likely to arise or be perceived to arise between partisan activities and the official duties and responsibilities of any person who works in the office of an agent of Parliament”. (s. 2) The bill would have applied to the auditor general, the information and privacy commissioners, chief electoral officer, and commissioner of official languages, the conflict of interest and ethics commissioner, and others. (s. 3)

Bill C-520 would have required three things. First, that all employees of federal agents and all job applicants disclose whether they had held any “partisan positions” in the past ten years. (s. 6(1)) Second, that all employees explicitly undertake to “conduct themselves in a non-partisan manner… in fulfilling the official duties and responsibilities of the position”. (s. 7) Third, that all employees make a declaration to their employer of any intention to occupy a politically partisan position in the future. (s. 6(2)) This declaration would need to be made publicly available by posting it on the office’s website. While non-partisanship and the requirement to take a leave of absence were already included in existing laws and policies, disclosure of all past political involvement and the need to publicly declare any broad “politically partisan position” attempted to reverse years of case law and government policy protecting public servants’ rights to be active members of Canada’s democracy.

Even more alarmingly, the bill initially contained a vague mechanism by which MPs could request that an agency investigate the past political activity of their employees. However, this clause was removed before being put before Parliament.

Describing the rationale behind his bill, MP Mark Adler asserted that the personal political affiliations of members of the public service could impair their ability to provide neutral and impartial services. He elaborated on this by saying a Conservative federal government would be less trustful of a report coming from an agency whose employees were in some way affiliated with the opposition NDP.

While private member’s bills rarely get passed, the Prime Minister’s director of communications issued a public statement that the bill reflected the government’s “principles of transparency and accountability”, thus, supporting and  publicizing the content and assumptions contained in the bill.

The vagueness of the bill’s language made some legal academics concerned over the potentially expansive scope of this legislation, while others felt that it indicated the bill was proposed merely for rhetorical value. Critics have also noted that refusal of employment based on political interference would unjustifiably infringe individuals’ rights to freedom of association and freedom of expression under the Charter and create a chilling effect on employees’ political involvement. (pp 9, 11-13)

Privacy Commissioner Daniel Therrien expressed concerns over what would be done with this information after it is disclosed, as political preference is legally considered to be sensitive personal information. Information Commissioner Suzanne Legault noted that the bill might actually politicize rather than depoliticize her office, as decisions would potentially be made, after considering individual's past political affiliations. Official Languages Commissioner Graham Fraser noted that political experience can be an asset rather than a liability as a public servant as past candidates or aides could bring useful skills and knowledge to their posts.

Several opposition MPs and members of the legal community have also expressed concerns over these provisions. Errol Mendes called the bill an “invitation to witch hunt” the public service, noting that it undermined the public service to assume that past political affiliation would prevent their neutrality in the present or future.

While the bill eventually passed through second reading in the Senate, it was then referred to committee, and did not proceed to a third reading before the end of the parliamentary session. MP Adler lost his seat in the 2015 election, and the bill has not been re-introduced.

Growing partisanship in the public service

While the federal government introduced its new Code of Conduct and expressed support for Bill C-520, critics were becoming increasingly concerned that these legislative and policy changes were in fact introducing more political partisanship into the public service rather than limiting it.

Kevin Page, the previous Parliamentary Budgetary Officer (PBO) who was ultimately ousted from his position for speaking out against discrepancies in the federal government’s spending, has been outspoken about a growing trend of political appointments within the public service, arguing that promotions to the most powerful positions are increasingly due to political relationships and networking rather than professional merit. He expressed concerns that public servants chosen for their political loyalty would be more concerned about keeping ministers happy than with providing fearless advice. Page asserted that the public service’s “capacity to fulfil its duties has been so severely eroded as to make the public service virtually impotent… it’s ability to examine issues that will impact future generations of Canadians is in doubt… what I learned from my PBO experience is that our public service has become good at avoiding accountability and transparency. The result is that public trust in the public service declines”.

Page also expressed concerns about how public servants could be intimidated during meetings by the Privy Council Office, other agencies or department heads, or else bribed by the civil service bonus system, which increased by 65% under the federal government between 2006 and 2013.

Linda Keen’s own experiences were similar. She was the president of the Canadian Nuclear Safety Commission (CNSC) until 2008, when it was largely believed she lost her position due to her standing up to the nuclear industry and government by shutting down a nuclear facility over public safety concerns. At that time, the then Natural Resource Minister had told Keen that her job as president of the CNSC was to promote the plan for new reactors, not regulate them.

She has since agreed that political interference in the public service has become steadily more common over the last several years. She believes that “enormous house cleaning” is needed to restore the civil service’s independence in order for it to serve the public.

A crack-down during the 2015 election

In the lead up to the 2015 federal election, the Public Service Commission sent memoranda to human resource branches of all government departments with reminders about limits on public servants’ political activities. The memorandum referred departments to the Commission’s online resources which include videos concerning the political candidacy process, and self-assessment documents for public servants to determine whether their political activity is permissible or not. They also encouraged individuals to consult with “Designated political activities representatives” in each government department if unsure about allowable activities. This approach was considered by some to be disproportionate especially considering the fact that only 4% of public servants in a recent survey by the Commission said they engaged in any political activity other than running for office.

Also during the campaign season in August 2015, the Professional Institute of the Public Service of Canada (PIPSC), a public service union, spoke out against a policy document drafted for employees of the Department of Justice that advised public servants not to use social media to speak out against the elected government during the election. The policy warned its employees, “you are public servants 24/7”, and claimed its purpose was merely to “assist” public servants in “upholding your obligations under the [Department of Justice Values and Ethics Code]”.

PIPSC described this policy memo as an “intimidation tactic aimed at putting a “chill” on the rights of civil servants”. PIPSC president Debi Daviau explained, “this government appears to be using fear and intimidation to shut people down in participating in the way they ought to be able to”. She called the document a “very heavy handed approach” to the issue of allowable political participation of the public service.

Public debate about the duties of public servants during the 2015 election also arose over the “Harperman” incident, which involved Tony Turner, a habitat planner at Environment Canada. He was also a veteran singer, well-known in the folk music scene since the mid-1990s and a member of Writers’ Bloc, a songwriters’ collective in Ottawa. During the 2015 election he wrote and performed a political protest song called “Harperman”. The five-minute song was broadcast on YouTube, with Turner singing the lead and playing guitar, and featuring different singers for each verse with the Raging Grannies singing backup.

The song tells then Prime Minister Harper that “we want you gone, gone, gone” and the chorus ends with "Harperman, it's time for you to go!". It also contains several verses that criticize aspects of the federal government’s environmental and other policies. The video was initially posted in June but only picked up by the media in August. By September, it had gone viral with almost a half million YouTube views.

Subsequently, Turner was suspended without pay while his behaviour initiated an internal investigation. In an Ottawa Citizen article, political scientist Donald Savoie said Harperman crossed the line and contravened the 2012 Values and Ethics Code for the Public Sector he questioned Turner’s judgment in publicly performing it. He also had criticism for the federal department for investigating it and bringing “even more attention” to the video.

While PIPSC, Turner’s union, took steps to protect him from disciplinary measures, he ultimately decided to retire early rather than “wait out an investigation” into the issue. He still believes his actions were consistent with his Charter rights, a stance the Public Service Union has agreed with, citing the Supreme Court decisions on this issue in the Osbourne.

Developments Since 2015

The newly elected federal government has promised to address concerns about the lack of neutrality and transparency of the federal public service. However, as of yet no concrete steps have been taken to do so. The unconstitutional ethics codes and federal guidelines are still in force.

Relevant Dates

  • 1985 - the Fraser decision: The Supreme Court of Canada confirms that public servants play an important role in ensuring the transparency and accountability of government. The decision also explains that public servants are members of the Canadian democratic system, and should be able to freely speak out without inhibition on important issues.
  • 1991 - the Osbourne decision: The Supreme Court confirms that public servants are entitled to Charter rights to freedom of speech and association. The Court also explains that while public servants are required to be loyal to the government, this must not be confused with any expectation of loyalty to the political party in power.
  • 2003 - the Public Service Employment Act (comes into force 2005): The federal government introduces a Public Service Values and Ethics Code that incorporates guidance from the Fraser and Osbourne decisions into its expectations of the public service. The Code speaks primarily to public servants’ professional duties, including their duty to serve the public interest.
  • 2007 - the first federal clamp-down on public servant’ free speech: The federal government initiates a new policy that prevents government scientists from speaking at conferences, or the media or public, without prior approval.
  • 2012 - new Values and Ethics Code for the Public Service: The federal government overhauls the 2005 ethics code removing all references to the duty of the public service to promote transparency and accountability of government or act in the public interest. The Code also adds vague clauses that could be interpreted to require public servants’ loyalty to the Conservative government in their professional as well as private lives.
  • 2013 - Bill C-520: A Conservative MP introduces a private member’s bill seeking to require all public servants and those applying for public service positions, to publicly disclose past ‘partisan activity’. The bill sparks public outcry with critics labelling it a “witch hunt” against public servants who are not members of the Conservative party. It reaches the senate, but stalls in committee and does not pass before the 2015 election, which saw a change in government and Adler lose his seat.
  • 2014 - new guidelines for allowable political activity: The federal government releases additional guidelines for public servants wanting to pursue “political activity”. However, Guidelines generally warn against this activity, and impose limits on public servant’s use of social media in their professional and private lives.
  • 2015 - Turner Incident: The federal government cracks down on any expression of political dissent from the public service in the lead up to the 2015 federal election. One attempt to do this to Tony Turner for his song “Harperman” (in which he urged the public not to re-elect Mr. Harper as Prime Minister) also causes a public outcry.

Role or Position

Starting in 2012, the federal government instituted a series of legislative and policy changes to undermine the transparency and independence of the public service. These changes also infringe public servants’ Charter rights to freedom of expression and freedom of association.

The legislative and policy changes included: a revision of the Values and Ethics Code for the Public Service; other federal policies that prevented public servants from speaking directly to the press; as well as policies restricting public servants’ use of social media. The introduction of Bill C-520 also illustrated the federal government’s mistrust of the public service. Such broad-reaching attempts to silence the public service were unprecedented in Canada, and weakened the country’s democracy.

Implications and Consequences

  • Freedom of Speech: by limiting public servants’ ability to speak freely to the public via social media or the press, the federal government denied public servant’s freedom of speech.
  • Freedom of Association: by introducing increasing suspicion of public servants’ personal political affiliations, and by effectively politicizing the appointment process for public servants, the federal government infringed public servants’ freedom of association.
  • Democracy: by infringing on public servants’ independence, neutrality, and by limiting their duty to act in the public interest, the federal government prevented the public service from performing their unique and important role in Canada’s democracy. Further, by limiting public servants’ ability to participate in democratic debate in their private lives, the federal government weakened public participation in the country’s democratic processes.

Sources