Federal Court


Commission’s denial of permission for prosecutor to seek nomination in federal election was upheld on appeal

Applicant’s request for permission and leave of absence to seek nomination in federal election denied by Public Service Commission. Applicant was prosecutor in Regulatory and Economic Prosecutions and Management Branch of Public Prosecution Service of Canada. Applicant’s supervisor claimed no concern if applicant returned to work if not elected but Director of Public Prosecution (DPP) had concerns about impairment or perceived impairment of applicant’s ability to perform duties both before election and upon her return to work. DPP claimed that partisan political activities by prosecutors undermine prosecutorial function. Commission not satisfied that being candidate would not impair or be perceived as impairing applicant’s ability to perform duties in politically impartial manner. Applicant’s appeal dismissed. Charter rights engaged were right to run for office, freedom of expression and freedom of association. Issue was whether Commission’s decision reflected proportionate balancing of Charter rights in light of statutory objectives. Commission’s decision did not amount to blanket prohibition on all federal prosecutors but based on consideration of applicant’s specific duties. DPP clearly expressed view that political involvement not appropriate for federal prosecutors. Implicit in scheme of Public Service Employment Act that right to engage in political activity may have to give way to objective of ensuring employees perform duties in politically impartial manner. PSEA requires commission to recognize and balance employee’s right to engage in political activities and objective of maintaining principle of political impartiality in public service. Although commission did not identify rights at stake as Charter rights, decision and process reflected that commission considered all submissions and impact of refusal which would limit applicant’s rights. Commission understood factual context, recognizing that applicant had authority to exercise significant discretion relative to other public servants. Commission properly viewed exercise of discretion in context of government employees and reasonably found that applicant would have increased visibility as result of seeking candidacy. Commission entitled to attach more weight to submissions of DPP but considered other information. Commission concluded that no measures could address risk to political partiality or perception of political partiality. Commission’s decision reflected proportionate balancing and was reasonable.

Taman v. Canada (Attorney General) (Oct. 13, 2015, F.C., Catherine M. Kane J., File No. T-60-15) 258 A.C.W.S. (3d) 327.

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