Federal public service workers in Canada did not always enjoy the right to engage in political activity. In fact, the former Public Service Employment Act prohibited almost all political activities by public service workers. It was only in 1991, following a seven year legal process led by PSAC members with the support of their union, that the Supreme Court of Canada struck down restrictions on the political activities once and for all.
The video below is an interview (recorded in April 2015) with Jeffry House, the lawyer who litigated the political rights case on behalf of PSAC members.
History of the legal case
Section 33 of the former Public Service Employment Act prohibited federal public service workers from working on the behalf of or against any political party or candidate. It limited their participation to simply contributing funds and attending political meetings. Several public service workers, including four PSAC members, wished to engage in political activity, and therefore commenced separate proceedings seeking a declaration that section 33 of the Act was unconstitutional. The actions and ensuing appeals were heard together.
August 1984 – Court challenges launched
Public Service Commission v. Barnhart, Camponi, Cassidy, Clavette and Stevens
Four PSAC members, Randy Barnhart, Linda Camponi, Ken Clavette and Heather Stevens were all public service workers who wished to work on the behalf of Michael Cassidy, a New Democratic Party candidate running for Parliament. Barnhart and Camponi both worked for the Department of Indian Affairs. Clavette was employed by the Department of National Defence and Stevens worked in the Public Archives of Canada. These four member each commenced proceedings in the Federal Court of Appeal, seeking a declaration that section 33 of the Act violated sections 2(b) and 2(d) of the Canadian Charter of Rights and Freedoms and, as such, was of no force and effect.
Public Service Commission v. Osborne; Public Service Commission v. Millar
Concurrently, Bryan Osborne and William James Millar, both public service workers who were employed by the Actuarial Branch of the Department of Insurance and the Department of Indian and Northern Affairs, respectively, undertook separate legal actions to assert their political rights. In 1984, the respondents were elected to be delegates at the federal Liberal Party leadership convention. However, they were forced to resign as delegates after being informed by their employers that disciplinary action would be taken against them. Osbourne and Millar commenced separate proceedings in Federal Court, seeking declarations that section 33 of the Act violated sections 2(b) and 2(d) of the Charter and, as such, was of no force and effect.
1986 – Federal Court decision
The Federal Court concluded that there was in Canada a convention of political neutrality in the public service that demanded some limitations on the partisan political actions of public servants. However, the court also found that the Act required some judicial interpretation when applied to specific cases of political activity. As such, the court limited the remedy to a declaration of which activities of the respondents were permissible under the Act.
In the case of Osborne and Millar, the court found that their election as delegates did not violate section 33 of the Act. With respect to Barnhart, however, the court ruled that he should not act as a scrutineer at a polling station. As for Camponi and Clavette, the court concluded that expressing their support for a particular political party would be a violation of section 33. Finally, in regards to Stevens, the court found that she would not be in violation of the Act as prohibiting the stuffing of envelopes and the addressing of correspondence would be too wide of an interpretation of section 33.
The government appealed this Federal Court decision and the PSAC extended its support for the ongoing legal challenge on behalf of its members.
1988 – Federal Court of Appeal decision
In July 1988, the Federal Court of Appeal overturned the judgment of the Federal Court. The court concluded that the challenged section was too vague and open to discretionary application. Therefore, the lower court had erred in limiting the remedy to a declaration of which activities of the respondents were permissible under s. 33 of the Act.
Furthermore, the court found that section 33 of the Act violated the right to freedom of association on the basis that the right to associate included the ability to advance and oppose interest by electoral means.
The government once again appealed the judgment of the Federal Court of Appeal to the Supreme Court of Canada. And the PSAC once again continued its support for its members’ case at the Supreme Court of Canada.
1991 – Supreme Court of Canada rules in favour of political rights for public service workers
In June 1991, the Supreme Court of Canada ruled in favour of PSAC members, thereby assuring the political rights of federal public service workers across the country. As a result of this decision (Osbourne v. Canada (Treasury Board)), the new Public Service Employment Act reads that “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.”
Thanks to this important legal process, therefore, the legal framework around the political rights of federal employees shifted dramatically between 1984 and 1991; it went from a blanket denial of political rights to the principle of full political rights (with special caveats to ensure neutrality of the public service.)