Although federal public servants have always had a limited right to freedom of expression (as compared to private sector employees), certain government employees have recently been subjected to increasingly strict policies, or codes of conduct, which govern their behaviour both in and out of the workplace. Two recent policies effectively restrict access to the media and participation in forums for intellectual debate — such as conferences or teaching engagements. Contrary to what you might expect, these policies do not target employees in the justice, immigration or national defence departments, but rather scientists, librarians and archivists associated with the Department of Fisheries and Oceans and the Department of Canadian Heritage. There are two reasons why Canadians should be concerned: 1) this continues a trend of the Harper government to restrict the public’s timely access to valuable information from our experts on issues of national importance (which in turn negatively impacts the quality of our public discourse and ability to make informed decisions); and 2) some of these policies are unnecessarily restrictive and arguably in breach of section 2(b) of the Charter of Rights and Freedoms ‑- the right to freedom of expression.
Where did these codes come from and why?
Pursuant to the Public Servants Disclosure Protection Act (PSDPA), a number of government departments were required to prepare a code of conduct applicable to its employees, including the Canadian Heritage department. The stated purpose of these codes of conduct is to “strengthen the ethical culture of the public sector and contribute to public confidence in the integrity of all public institutions.” The preamble to the PSDPA itself expressly recognizes, however, that there are two competing values at stake for public servants: the duty of loyalty to the employer and the right to freedom of expression. The PSDPA purportedly strives to achieve an appropriate balance between them.
The right to freedom of expression and its limits
As early as 1985, the Supreme Court of Canada recognized that public servants have the right to express themselves on issues of public interest and that they should not be made “silent members of society” as their participation in “free and robust public discussion of public issues” was necessary to the proper functioning of our democratic system (see Fraser at paragraphs 31‑35).
At the same time, the courts in Canada have found that the right to freedom of expression is not absolute. It is limited by the duty to ensure that the service government employees provide is (and is perceived to be) impartial and effective; it is limited by the duty of loyalty to the Government of Canada (see Haydon at paragraphs 33‑35). Accordingly, civil servants should not publicly and vigorously express opposition to the government’s policies (and harm its reputation) unless: a) the policies are illegal; b) they jeopardize the life, health or safety of the public servant or others; or c) the criticism has no impact on the employee’s ability to effectively perform the duties of a public servant or on the public’s perception of that ability (because they are unrelated to his or her work).
Notwithstanding the above, the limits on freedom of expression do not apply equally to all public servants and types of expression. In Osbourne, the Supreme Court of Canada clarified that the scope of the duty of loyalty was relative to the employee’s position and visibility, such that a deputy minister and clerical worker would not be required to exercise the same level of restraint (Osborne at para. 61). The following factors can and should be taken into account when assessing whether the duty of loyalty has been breached: the level of the employee within the government; 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 the 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.
The LAC Code of Conduct
There has been a great deal of uproar over the past few weeks about whether or not the new Code of Conduct (Code) imposed on Library and Archives Canada (LAC) employees is a further attempt to muzzle federal civil servants. Why the government would want to clamp down on federal librarians and archivists, who provide a wealth of information about our heritage to historians, writers, researchers and academics, is anyone’s guess.
While the LAC Code of Conduct (Code) indirectly refers to some of the relevant case law in Canada regarding the duty of loyalty and sets out reasonable policies with respect to Internet use, confidentiality and harassment, it fails to set out a reasonable policy with respect to personal or professional conflicts of interest and certainly appears to restrict the public’s access to librarians and archivists in a professional context by requiring that only “authorized spokespersons” respond to inquiries about LAC’s position on any subject.
With respect to conflicts of interest, section 4.2 and 4.4.2 of the Code are of particular interest. Section 4.2 refers to the obligation to report “high risk” activities such as a teaching position at the college or university level to the Conflict of Interest Administrator. Further, section 4.4.2 of the Code in relation to the personal, off‑duty conduct of the employee, requires the employee to obtain permission before he or she is able to accept an invitation to teach, speak at a conference, or even to merely attend a conference. These activities have all been classified as “high risk”. In all cases, regardless of whether the personal engagement has anything to do with the activities of LAC or whether the employee is presented in association with LAC, clearance from the employee’s Manager is required. This appears to be an unnecessary intrusion into the personal activities of the employee and an unreasonable limit on freedom of expression.
Public servants are required to be cautious about criticizing their employer or undermining policies related to their work in a public manner. Employees can already be disciplined for breaching law and policy in this regard and presumably they understand the limits on their free speech. Why then create additional challenges in the Code that will prevent employees from engaging in intellectual debate and educational or professional development opportunities?
Further, the Code defines “employee” to include students, casual workers, volunteers and contractors, where the latter two are not even public servants. As such, the policy does not take into account the employee’s position and visibility in outlining the scope of their duties. The broad application of this policy to the various types of “employees” at LAC may well result in a breach of some of their Charter rights. The drafters of this Code have failed to strike an appropriate balance between the duty of loyalty and freedom of expression.
Finally, it is important to remember why Library and Archives Canada was created. The department’s mandate as set out in federal law is to: preserve the documentary heritage of Canada for the benefit of present and future generations; be a source of enduring knowledge accessible to all, contribute to the cultural, social and economic advancement of Canada; facilitate in Canada co-operation among communities involved in the acquisition, preservation and diffusion of knowledge; and to serve as the continuing memory of the Government of Canada and its institutions.
Given that part of LAC’s mandate is to make its information available to the public and to collaborate and contribute to the sharing of its knowledge, the sections of LAC’s new Code referred to above seem terribly inconsistent with the organization’s purpose and function. The experience of federal scientists suggests that this policy will have the effect of stifling the participation of these employees in educational and other settings through both self‑censoring and possible delay tactics on the part of LAC management. Both employees and the public will suffer. It will be essential in the coming days for all interested organizations and employees to continue to make their concerns known and to press for revisions to the Code. The alternative will be a lengthy battle through a grievance process at which point much damage will already have been done.
Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities, and socially-minded small business and individuals in Ontario.
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