Date: 20170106

Docket: A-487-15

Citation: 2017 FCA 1

CORAM:

NADON J.A. PELLETIER J.A. SCOTT J.A.

 

BETWEEN:

EMILIE TAMAN

Appellant

and

ATTORNEY GENERAL OF CANADA

Respondent

Heard at Ottawa, Ontario, on September 6, 2016.

Judgment delivered at Ottawa, Ontario, on January 6, 2017.

REASONS FOR JUDGMENT BY:	PELLETIER J.A.
CONCURRED IN BY:	NADON J.A. SCOTT J.A.

 

Date: 20170106

Docket: A-487-15

Citation: 2017 FCA 1

CORAM:

NADON J.A. PELLETIER J.A. SCOTT J.A.

 

BETWEEN:

EMILIE TAMAN

Appellant

and

ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR JUDGMENT

PELLETIER J.A.

I.                   INTRODUCTION

[1]               The appellant Emilie Taman was formerly a federal prosecutor in the Regulatory and Economic Prosecutions and Management Branch of the Public Prosecution Service of Canada (PPSC). Her team was responsible for the prosecution of regulatory offences. She worked on prosecutions under the Immigration and Refugee Protection Act, S.C. 2001, c. 27; the Fisheries Act, R.S.C. 1985, c. F-14; the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) and the Lobbying Act, R.S.C. 1985, c. 44 (4th Supp.).

[2]               On November 21, 2014, Ms Taman submitted a request to the Public Service Commission (the Commission) pursuant to section 114 of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 [PSEA] for permission to seek the nomination of a political party and, if successful, to run as that political party’s candidate in the October 19, 2015 federal election. She sought a leave of absence without pay beginning on the day she won the nomination and continuing through the election period. In the event that she was not successful, she volunteered to take a “cooling off” leave without pay and to take a non-prosecutorial position within the PPSC.

[3]               Ms Taman’s immediate supervisor was of the view that her ability to perform her duties in a politically impartial manner would be impaired or perceived to be impaired upon nomination and during the election. However, he was satisfied that no actual or perceived impairment would exist upon her return to work if she did not receive the nomination or was not elected. Therefore, he supported her application.

[4]               The Director of Public Prosecutions (DPP) disagreed that the perception of partiality would not arise if Ms Taman was unsuccessful in seeking nomination or in being elected. In his opinion, seeking a political party’s nomination indicates a significant allegiance to the party and its platform. This allegiance could be perceived as interfering with Ms Taman’s ability to independently perform her prosecutorial functions, particularly on files of a political nature, such as offences under the Lobbying Act, the Canada Elections Act, S.C. 2000, c. 9 and the Parliament of Canada Act, R.S.C. 1985, c. P-1. The DPP was also of the view that Ms Taman could not be transferred to a non-prosecutorial position upon her return as few such positions exist in the PPSC.

[5]               On December 16, 2014, the Commission rejected Ms Taman’s request as it was not satisfied as required by subsections 114(4) and (5) of the PSEA that Ms Taman could return to her position without being impaired or being perceived to be impaired in her ability to perform her duties impartially.Ms Taman sought judicial review of the Commission’s decision in the Federal Court. Justice Kane acknowledged that the Commission’s decision limited Ms Taman’s rights under the Charter of Rights and Freedoms (the Charter), but concluded that the decision was a proportionate balancing of the Charter rights in dispute and Ms Taman’s ability to perform her duties in a politically impartial manner upon her return to work. Ms Taman appeals to this Court from that judgment.

[6]               For the reasons which follow, I would allow the appeal. Given that the 2015 federal election has come and gone, I would not remit the matter to the Commission for redetermination as its decision would have no practical effect on Ms Taman’s right to seek elected office.

II.                DECISION UNDER REVIEW

[7]               I begin by reviewing the Commission’s decision refusing Ms Taman’s request for permission to seek elected office.

[8]               In order to avoid repetition of the cumbersome formulas “seek[ing] nomination as a candidate in a federal, provincial or territorial election” and “be[ing] a candidate in a federal, provincial or territorial election,” I propose to refer to the process of seeking permission to pursue a political nomination and, if successful, seeking permission to be a candidate in an election as “seeking elected office.”

[9]               Furthermore, while the grammatical opposite of political impartiality is political partiality, this phrase is rather uncommunicative. I believe that the mischief which the PSEA means to address is political partisanship in the public service, or the risk of the appearance of partisanship. As a result, I propose to use the expressions “partisanship” or “political partisanship” to mean the opposite of political impartiality. As was pointed out in R. v. Cawthorne, 2016 SCC 32, 402 D.L.R. (4th) 50 at paragraph 27 [Cawthorne], in the context of prosecutorial independence, “‘[p]artisan’ is not broadly synonymous with ‘political.’” However, in the context of this discussion, I propose to use the two words as synonyms for the sake of convenience and brevity.

[10]           The Commission began by summarizing the statutory framework for Ms Taman’s request for permission to seek elected office in the 2015 federal election. After setting out the sources of information before it, the Commission expressed its concern that Ms Taman’s ability to perform her duties in a politically impartial manner would be impaired or perceived to be impaired “in light of the nature of her duties and the increased publicity, visibility and recognition that would be associated with seeking nomination and being a candidate in a federal election”: Appeal Book [AB] at 73.

[11]           The Commission then summarized Ms Taman’s duties, noting that Ms Taman was highly visible when she appeared in court in her capacity as a federal prosecutor, often before members of the public, including friends and relatives of the defendant. In addition she could be asked to deal with the media to provide information about the proceedings in which she was engaged.

[12]           The Commission then referred to the concerns expressed by the DPP, namely that being a candidate of a political party would indicate a significant allegiance to a political party which, in his view, would undermine the independence of the prosecutorial function of his office. This led the Commission to conclude that this, in turn, could lead to a perception that Ms Taman was not able to perform her duties in a politically impartial manner.

[13]           Next, the Commission considered whether the risk of impairment due to partisanship could be mitigated, in the event that Ms Taman was not elected, by a leave without pay or by reassignment to non-prosecutorial duties following the election. This possibility appeared to be foreclosed by the DPP’s assertion that he could not accommodate such an arrangement in light of its small size.

[14]           The Commission’s ultimate conclusion was that being a candidate for a political party “may impair or be perceived as impairing” Ms Taman’s ability to perform her duties in a politically impartial manner. As a result, the Commission was not satisfied that the conditions set out in subsections 114(4) and (5) of the PSEA had been met and therefore permission could not be granted.

[15]           The matter then came before the Federal Court on an application for judicial review. For the purposes of this appeal, it is sufficient to say that the Federal Court dismissed Ms Taman’s application for judicial review on the basis that the Commission’s decision was reasonable as it reflected a proportionate balancing of Ms Taman’s right to participate in the political process pursuant to paragraph 2(b) and section 3 of the Charter and the public’s interest in having a public service whose members are able to perform their duties, and to be seen to perform their duties, in a politically impartial manner. The Federal Court followed the Supreme Court’s framework for analyzing administrative decisions that engage an applicant’s rights under the Charter as set out in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 [Doré] and, more recently, Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613.

III.             STANDARD OF REVIEW

[16]           On appeal from the Federal Court sitting in judicial review, this Court must determine whether the Federal Court adopted the correct standard of review and, if it did, whether it applied it properly: Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 at paras. 43-44. In practical terms, this means that this Court steps into the shoes of the Federal Court: Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23 at para. 247; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at paras. 45-46.

[17]           In this case, the standard of review of the Commission’s decision is reasonableness. The request for permission to seek elected office required the Commission to interpret and apply its “home” statute. As a result, the presumption of a reasonableness standard of review applies to a review of the Commission’s decision on administrative law grounds: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at para. 34; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, 402 D.L.R. (4th) 236 at paras. 22-23.

[18]           As I do not propose to address the Charter issues that were raised in argument before us, I will not review the Commission’s decision to see if it is reasonable in the sense of representing, “a proportionate balancing of Charter protections at play”: Doré at para. 57. I choose not to address the Charter issues because, apart from a single reference to the Charter in her response to the DPP’s position (AB at 788), Ms Taman does not appear to have pursued them before the PSC. This Court is reluctant to embark upon Charter reviews where the parties have not pursued their Charter remedies before the initial decision maker: see Forest Ethics Advocacy Association v. Canada (National Energy Board), 2014 FCA 245, [2015] 4 F.C.R. 75 at para. 37. This reluctance is grounded in the need to allow the federal board, commission or tribunal an opportunity to lead evidence to support a “reasonable limitation” argument, which is best done before the trier of fact. It is grounded as well in our recognition that the initial decision maker’s analysis will provide valuable insights into the proper balancing of the various factors at play.

IV.             ANALYSIS

[19]           For ease of reference, the relevant provisions of the PSEA are reproduced below:

[20]           It appears from these provisions that Parliament was concerned not so much with political impartiality, in and of itself, but rather with the impairment, or the perception of impairment, of a public official’s ability to perform their duties in a politically impartial manner. It would appear to me to follow that in order to give or refuse a public official permission to seek elected office, the Commission could reasonably be expected to have a clear idea of what would impair, or give the appearance of impairing, a public official’s ability to perform the duties of their employment in a politically impartial way.

[21]           The Commission’s task is made all the more difficult by the fact that it must decide on a future state of affairs. The Commission is not asked to decide if seeking elected office has impaired a public official’s ability to perform their duties in a politically impartial manner in a given case, but rather if seeking elected office will impair a public official’s ability to do so in the future. A similar inquiry is required in relation to the public’s perception of the official’s ability be politically impartial. To that extent, the Commission must have some idea as to what facts or characteristics that are ascertainable prior to an election campaign are or may be predictors of the public official’s conduct, or the perception of their conduct, after the campaign.

[22]           Impairment due to partisanship and the perception of such impairment are two distinct inquiries. A public official could persuade the Commission that they will, in fact, act in a politically impartial manner after the election but fail to persuade the Commission that they will not be perceived to act in a politically partisan manner. One would expect that while there may be overlapping considerations, there will be factors that are specific to one branch or the other of the Commission’s inquiry.

[23]           The PSEA does provide a list of factors that the Commission may take into consideration in deciding whether to grant a public official permission to run for elected office. Those factors are the nature of the election, the nature of the employee’s duties and the level and visibility of the employee’s position: PSEA, s. 114(6). The question that arises is the predictive value of these factors for either of the two inquiries that the Commission must undertake.

[24]           For example, how does knowledge of the employee’s duties assist the Commission in deciding if the employee will be impaired in their ability to perform those duties in a politically impartial manner after a failed attempt at election to public office?

[25]           Public officials have, both before and after an attempt to be elected to public office, a duty of loyalty to their employer, a duty that requires public officials, with some exceptions, to abstain from publicly criticizing government policy. In Fraser v. Canada (Public Service Staff Relations Board), [1985] 2 S.C.R. 455, 1985 CanLII 14 [Fraser], Chief Justice Dickson listed the characteristics that are necessary to enable public officials to do their jobs: knowledge, fairness and integrity. The Chief Justice then went on to describe a fourth necessary characteristic:

As the Adjudicator indicated, a further characteristic is loyalty. As a general rule, federal public servants should be loyal to their employer, the Government of Canada. The loyalty owed is to the Government of Canada, not the political party in power at any one time. A public servant need not vote for the governing party. Nor need he or she publicly espouse its policies…it is my view that a public servant must not engage, as the appellant did in the present case, in sustained and highly visible attacks on major Government policies. In conducting himself in this way the appellant, in my view, displayed a lack of loyalty to the Government that was inconsistent with his duties as an employee of the Government.

Fraser at 470.

[26]           Unless one is prepared to assume (without evidence) that the more autonomy and discretion a public official has, the more likely they are to breach their duty of loyalty and behave (or be perceived to behave) in a partisan manner after having sought public office, one must ask how autonomy and discretion in a given official’s duties are indicative of how that official will behave (or be perceived to behave) following an unsuccessful attempt to be elected to office. The fact that the PSEA permits consideration of the nature of a public official’s duties does not necessarily mean that some duties, as opposed to others, increase the likelihood of partisan activity, or the perception of partisan activity, upon that official’s return to work.

[27]           The nature of an election campaign is such that it will bring a public official/candidate to the attention of the general public. This increases the risk that someone may claim that they are acting in a partisan manner once they return to their employment. Presumably, the mere possibility that a complaint may be made, independently of its merits, is not sufficient to justify refusing a public official permission to seek elected office. If too much weight is given to that possibility, no public official who deals with the public in any way would ever be given permission. The Commission must be able to weigh the likelihood of complaints and the risk of adverse perception of the public official in the discharge of their post-election duties against the right to participate in the electoral process offered them by section 112 of the PSEA. In addition, the PSC may also weigh whether any risk of adverse public perception can be minimized by public education measures, which might be undertaken by the PSC itself or by ministry managers.

[28]           These questions and others arise in attempting to understand how Parliament intended the political activities provisions of the PSEA to be interpreted and applied, bearing in mind that the restrictions on public officials in the predecessor legislation were struck down for being overbroad: Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69, 82 D.L.R. (4th) 321 at 101. It strikes me as unlikely that Parliament intended to effectively deprive all but the most junior public officials of the right to run for elected office.

[29]           Turning now to the Commission’s decision, how did it deal with the relationship between seeking elected office and political impartiality?

[30]           The Commission noted its concerns that Ms Taman’s ability to perform her duties in a politically impartial manner, while working as a federal prosecutor, may be impaired or be perceived to be impaired “in light of the nature of her duties and the increased publicity, visibility and recognition that would be associated with seeking nomination and being a candidate in a federal election”: AB at 73. The Commission goes on to comment that Ms Taman would have increased visibility as a result of campaign activities designed to raise her profile in the riding in which she sought to be a candidate.

[31]           At this point, the Commission appears to be setting Ms Taman’s ability to impartially perform her duties as a federal prosecutor against the publicity, visibility, and recognition that would be associated with running for elected office. This suggests that as publicity, visibility and recognition increase, the ability (or the perception of one’s ability) to perform one’s duties without impairment due to partisanship decreases. While this may ultimately be shown to be true, it is not self-evident.

[32]           The Commission then summarized Ms Taman’s duties as a federal prosecutor in the Regulatory and Economic Prosecutions and Management Branch. It noted that Ms Taman has a high level of autonomy and decision-making. It also noted that Ms Taman is involved in various activities related to prosecution of offences under federal legislation such as advising investigative agencies such as the RCMP, discussing plea and sentencing with defence counsel and determining issue resolution for some files. The Commission commented on the fact that Ms Taman is highly visible when appearing in Court.

[33]           The Commission then noted the concerns of the DPP that seeking elected office indicates a significant allegiance to a political party and its platform. In the DPP’s view, this would undermine the independence of the prosecutorial function of the ODPP. The Commission concluded that this undermining could lead to the perception that Ms Taman was not able to perform her duties in a politically impartial manner.

[34]           This is the substance of the Commission’s analysis as to whether Ms Taman, following her return to work after an unsuccessful attempt at election to public office, would be impaired, or be perceived to be impaired, in her ability to perform her duties in a politically impartial manner.

[35]           It appears to me that the Commission’s analysis consisted of equating autonomy, discretion and visibility with the impairment of Ms Taman’s ability to perform her duties with political impartiality. The Commission also appears to have been uncritical of the DPP’s claim that a prosecutor’s candidacy and the significant allegiance to a political party and its platform implicit in that candidacy undermines the independence of the ODPP.

[36]           It is not my position that these conclusions could not ultimately be shown to be reasonable. My position is that the Commission has not justified its conclusions. It seems to have proceeded on the basis of causal relationships that appeared to it to be self-evident.

[37]           At the risk of repeating myself, the Commission’s task was to make two determinations. It had to decide if granting Ms Taman permission to seek elected office would result in, 1) an impairment, or 2) a perception of impairment, of her ability to perform her duties in a politically impartial manner upon her return to her position after the election.

[38]           While the Commission has identified autonomy, discretion and visibility as factors in its consideration of impairment, it has not indicated how these factors led it to its ultimate conclusion. Ms Taman’s autonomy, discretion and visibility would have been the same before and after the election. If they did not contribute to the impairment of her ability (as opposed to a perception of her ability) to discharge her duties before the election, why would they have done so after the election? The opportunity to act in a partisan manner would have been the same before and after the election. If Ms Taman’s political opinions did not colour the exercise of her discretion before the election, why would they do so after the election?

[39]           The Commission may have answers to these questions but it has not articulated them so as to allow this Court to assess the reasonableness of its conclusions.

[40]           The issue of the perception of impairment presents itself in a slightly different fashion but the issues are the same. As pointed out by the Commission, the fact of seeking elected office would result in Ms Taman engaging in campaign activities in order to become known and recognizable in her riding and perhaps further afield. The result would be that when she resumed her duties, certain members of the public would, for a time, recognize her as having been a candidate for a particular political party. The more visible her position, the wider the recognition of her political affiliation.

[41]           That said, how would her political affiliation, now publicly known, affect the perception of her ability to perform her duties in a politically impartial manner. It is important to distinguish between known political affiliation and political activity in the workplace. One must assume that Ms Taman would refrain from political activity in the workplace so that the sole basis for a perception of partiality in the discharge of her duties would be her known political affiliation. The question for the PSC is whether the fact that a public official’s political affiliation will become public knowledge is, in and of itself, a sufficient ground to refuse permission to seek elected office.

[42]           Politics is a partisan activity; activists of other political parties might well attack Ms Taman’s performance of her duties for purely partisan reasons, unrelated to any actual or perceived partiality. This may or may not come within the notion of perception of impairment of her ability to perform her duties in a politically impartial manner. That is a matter for the Commission to decide but there is an argument to be made that Ms Taman’s right to participate fully in the electoral process should not be curtailed by the possibility of bad faith attacks on her impartiality.

[43]           Of course, not all allegations of political partisanship would be made in bad faith. How would such allegations be assessed if Ms Taman had been given permission to seek public office but had been unsuccessful? If an allegation of partisanship were made in connection with Ms Taman’s involvement in a particular file, say a prosecution under the Lobbying Act, R.S.C., 1985, c. 44 (4th Supp.), that allegation might be assessed using the test for bias set out in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at 394, 1976 CanLII 2 or the test for conflict of interest described in Threader v. Canada (Treasury Board), [1987] 1 F.C. 41 at 56-57, 68 N.R. 143 (C.A.). But the Commission is not tasked with deciding specific cases of reasonable apprehension of bias or conflict of interest. It must decide whether the fact of having been a candidate for a political party will, in and of itself, impair the perception of a public official’s ability to perform their duties without partisanship.

[44]           The Commission appears to have taken to heart the DPP’s concerns about prosecutorial independence. While the latter has a legitimate interest in the perceived independence of his office, the Commission was bound to examine his comments with care. Concerns about prosecutorial independence arise from the possibility that a sitting government could use its control over criminal prosecutions to punish its enemies or to advance its partisan agenda. These preoccupations were reflected in Cawthorne at paragraph 23:

Charron J. reiterated this point in Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, describing the independence of the Attorney General as a “constitutionally entrenched” principle that “requires that the Attorney General act independently of political pressures from government”: para. 46. But the logic of these statements clearly extends to Crown prosecutors and other public officials exercising a prosecutorial function.

[45]           With all due respect to the opinion of the DPP, a respected public servant, it is not obvious that Ms Taman’s candidacy would have raised an issue of prosecutorial independence in this sense. The issue for the Commission was not prosecutorial independence but prosecutorial partisanship. How probable was it that Ms Taman, following an unsuccessful attempt to obtain elected office, would conduct herself in a politically partisan way or in a manner which would leave her open to allegations of political partisanship?

[46]           The DPP’s opinion appears to have been shaped by the fact that his office was called upon to defend (successfully) a motion seeking the removal from a particular file of a prosecutor who had 20 years previously been an electoral candidate. No doubt the DPP was embarrassed by the allegations of partiality and anxious to avoid a repeat of the experience, but the question for the Commission was whether the DPP’s sensitivity to the issue was a sufficient ground to deprive Ms Taman of her right to participate in the political process which the PSEA recognizes.

V.                CONCLUSION

[47]           To summarize, the Commission has not justified its refusal to grant Ms Taman permission to seek elected office. It relied on the factors listed in the PSEA without showing how the presence of those factors led to its conclusion. The Commission did not distinguish between actual impairment of Ms Taman’s ability to perform her duties in a politically impartial manner and a perception of impairment of her ability to do so. While this suggests a deficiency in the preparation of the Commission’s reasons, it also suggests errors in reasoning which make the decision unreasonable. That is to say, the decision lacks justification, transparency and intelligibility: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47.

[48]           I would therefore allow the appeal and set aside the decision of the Commission with costs to Ms Taman in this Court and in the Federal Court. We were advised at the hearing of the appeal that this matter is not moot as Ms Taman has a grievance pending relating to her employment status. Be that as it may, I do not see the utility of asking the Commission to engage in a fresh determination of Ms Taman’s request for permission to seek elected office for purely collateral purposes. As a result, I would not return the matter to the Commission for a fresh determination.

"J.D. Denis Pelletier"

“I agree

M. Nadon J.A.”

“I agree

A.F. Scott J.A.”

 

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

Docket:

A-487-15

APPEAL FROM A ORDER OF JUSTICE CATHERINE M. KANE, DATED October 13, 2015 NO. T-60-15

STYLE OF CAUSE:	EMILIE TAMAN v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING:		Ottawa, Ontario
DATE OF HEARING:		September 6, 2016
REASONS FOR JUDGMENT BY:		PELLETIER J.A.
CONCURRED IN BY:		NADON J.A. SCOTT J.A.
DATED:		JANUARY 6, 2017

APPEARANCES:

Christopher Rootham Andrew Reinholdt	For The Appellant EMILIE TAMAN
Adrian Bieniasiewicz	For The Respondent ATTORNEY GENERAL OF CANADA

SOLICITORS OF RECORD:

Nelligan O'Brien Payne Ottawa, Ontario	For The Appellant EMILIE TAMAN
William F. Pentney Deputy Attorney General of Canada	For The Respondent ATTORNEY GENERAL OF CANADA