Osborne v. Canada (Treasury Board) [1991] 2 S.C.R. 69: Relationship between s. 24(1) of Canadian Charter of Rights and Freedoms and s. 52(1) of Constitution

Present: Wilson, La Forest, L'Heureux-Dubé, Sopinka, Cory, McLachlin and Stevenson JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Constitutional law - Constitutional convention - Political neutrality of Public Service employees - Whether statutory provision implementing constitutional convention can be inconsistent with Constitution? - Canadian Charter of Rights and Freedoms, s. 2(b) - Public Service Employment Act, R.S.C., 1985, c. P-33, s. 33.

Constitutional law - Charter of Rights - Freedom of expression - Public Service - Political partisanship - Federal legislation prohibiting public servants from engaging in work for or against a political party or candidate - Whether legislation infringes s. 2(b) of Charter - If so, whether legislation justifiable under s. 1 of Charter - Canadian Charter of Rights and Freedoms, ss. 1, 2(b) - Public Service Employment Act, R.S.C., 1985, c. P-33, s. 33.

Constitutional law - Charter of Rights - Reasonable limits - Vagueness - Federal legislation prohibiting public servants from engaging in work for or against a political party or candidate - Whether legislation too vague to constitute a limit prescribed by law - Canadian Charter of Rights and Freedoms, s. 1 - Public Service Employment Act, R.S.C., 1985, c. P-33, s. 33.

Constitutional law - Charter of Rights - Remedies - Relationship between s. 24(1) of Canadian Charter of Rights and Freedoms and s. 52(1) of Constitution Act, 1982.

These appeals concern the constitutionality of s. 33(1) of the Public Service Employment Act, which prohibits public servants from "engag[ing] in work" for or against a candidate (s. 33(1)(a)) or a political party (s. 33(1)(b)). Under s. 33(2), a public servant does not contravene s. 33(1) by reason only of attending a political meeting or contributing money to the funds of a candidate or of a political party. The respondents, with one exception, are federal public servants who wished to participate in various political activities. They took action in the Federal Court, Trial Division seeking a declaration that s. 33 is of no force or effect in so far as it violates ss. 2(b) and 2(d) of the Canadian Charter of Rights and Freedoms. The court concluded that even if s. 33 infringed the rights of individual public servants guaranteed by the Charter, such limits were justified under s. 1 of the Charter. The Federal Court of Appeal set aside the judgment. The Court of Appeal found that ss. 33(1)(a) and 33(1)(b) infringed ss. 2(b) and 2(d) of the Charter but that s. 33(1)(b) was justifiable under s. 1. Section 33(1)(a) of the Act was declared of no force or effect except as it applies to a "deputy head".

Held (Stevenson J. dissenting): The appeals should be dismissed.

(1) Constitutional Convention

Section 33 of the Act is not immune from Charter scrutiny merely because it may be said to uphold a constitutional convention. While conventions form part of the Constitution of this country in the broader political sense, i.e., the democratic principles underlying our political system and the elements which constitute the relationships between the various levels and organs of government, they are not enforceable in a court of law unless they are incorporated into legislation. Furthermore, statutes embodying constitutional conventions do not automatically become entrenched to form part of the constitutional law, but retain their status as ordinary statutes. Being a provision in an ordinary statute, s. 33 is subject to review under the Charter as any ordinary legislation.

(2) Freedom of Expression

Section 33 of the Act, which prohibits partisan political expression and activity by public servants under threat of disciplinary action including dismissal from employment, infringes the right to freedom of expression in s. 2(b) of the Charter. Where opposing values call for a restriction on the freedom of speech, and, apart from exceptional cases, the limits on that freedom are to be dealt with under the balancing test in s. 1, rather than circumscribing the scope of the guarantee at the outset. In this case, by prohibiting public servants from speaking out in favour of a political party or candidate, s. 33 of the Act expressly has for its purpose the restriction of expressive activity and is accordingly inconsistent with s. 2(b) of the Charter. In light of the conclusion that s. 33 is inconsistent with s. 2(b), it is neither necessary nor appropriate in the circumstances to determine whether there is also a violation of s. 2(d) of the Charter.

(3) Reasonable Limit

Section 33 of the Act is sufficiently precise to constitute a limit prescribed by law under s. 1 of the Charter. Section 33 is not couched in such vague or general language that it does not contain an intelligible standard. The words "engage in work", while capable of very wide import, are ordinary simple words that are capable of interpretation. These words may present considerable difficulty in application to a specific situation, but difficulty of interpretation cannot be equated with the absence of any intelligible standard. Finally, the language of s. 33 does not create a standard which leaves it to the members of the Public Service Commission to ban whatever activity they please.

Per Wilson, La Forest, L'Heureux-Dubé, Sopinka, Cory and McLachlin JJ.: Section 33 of the Act is not saved by s. 1 of the Charter. While the legislative objective of maintaining the neutrality of the public service is of sufficient importance to justify a limitation on freedom of expression, the impugned legislation fails to meet the proportionality test. The restriction of partisan political activity is rationally connected to the objective but s. 33 does not constitute a measure carefully designed to impair freedom of expression as little as reasonably possible. The section bans all partisan-related work by all public servants, without distinction either as to the type of work, or as to their relative role, level or importance in the public service hierarchy. The result of the broad general language of s. 33 is that the restrictions apply to a great number of public servants who in modern government are completely divorced from the exercise of any discretion that could be in any manner affected by political considerations. The need for impartiality and indeed for the appearance thereof does not remain constant throughout the civil service hierarchy. Section 33, therefore, is over-inclusive and, in many of its applications, goes beyond what is necessary to achieve the objective of an impartial and loyal civil service.
Per Stevenson J. (dissenting): Section 33(1)(a) of the Public Service Employment Act is justifiable under s. 1 of the Charter. The important objective of s. 33(1)(a) is to secure civil service neutrality in all of its elements. An effective civil service is essential to modern day democratic society and a measure of neutrality is necessary in order to preserve that effectiveness. No civil servant must owe, or be seen to owe, appointment or promotion to partisan activities since visible partisanship by civil servants would severely impair, if not destroy, the public perception of neutrality. In that context, s. 33(1)(a) of the Act is an acceptably proportional response to Parliament's objective. The section does not suffer from overbreadth and meets the "minimal impairment" test. The proposed less restrictive means, which distinguish between various levels of public servants (and thus abandon any restraint on the so-called lower level civil service), would not satisfy the objective of preserving the civil service's political neutrality. Finally, there is an appropriate proportionality between the effects of the measure and the objective. The provision does not deny freedom of expression. It imposes a limitation on that freedom in the context of partisan political activities upon persons who must know, or at least be deemed to know, that employment in the public service involves acceptance of certain restraints.

(4) Remedy

Per Sopinka, Cory and McLachlin JJ.: In selecting an appropriate remedy under s. 24(1) of the Charter a court's primary concern must be to apply the measures that will best vindicate the values expressed in the Charter and to provide the form of remedy to those whose rights have been violated that best achieves that objective. The court, while it is given an express mandate to declare a law to be of no force or effect to the extent of its inconsistency with the Charter under s. 52(1) of the Constitution Act, 1982, must be sensitive to its proper role in the constitutional framework and refrain from intruding into the legislative sphere beyond what is necessary to give full effect to the Charter's provisions. In exercising its broad discretion to fashion an appropriate remedy in a Charter case, the court need not resolve the question as to whether there is a presumption of constitutionality. By reason of the diverse and novel problems which it will be called upon to redress, the court must maintain at its disposition a variety of remedies as part of its arsenal. "Reading down" legislation may, in some cases, be an appropriate remedy. The same result may on occasion be obtained by resort to the constitutional exemption. However, it is not necessary in this case to determine whether the Court has the power to apply such remedies in a Charter case since it is preferable to strike out s. 33(1) to the extent of its inconsistency with s. 2(b). To maintain a section that is riddled with infirmity would not uphold the values of the Charter and would constitute a greater intrusion on Parliament's role. Parliament should determine how the section should be redrafted, not the Court. The Federal Court of Appeal's order, which declared s. 33(1)(a) of no force or effect except as it applies to a "deputy head", must stand since the respondents did not cross-appeal or seek a variation of the order.

Per Wilson and L'Heureux-Dubé JJ.: Once the Court has found that the impugned legislation on its proper interpretation is over-inclusive, infringes on a Charter right, and cannot be justified as a reasonable limit under s. 1, the Court has no alternative under s. 52(1) of the Constitution Act, 1982 but to strike the legislation down or, if the unconstitutional aspects are severable, to strike it down to the extent of its inconsistency with the Constitution. It is not open to the Court in these circumstances to create exemptions to the legislation (which presupposes its constitutional validity) and grant individual remedies under s. 24(1) of the Charter.

Per La Forest J.: The interplay between s. 24(1) of the Charter and s. 52(1) of the Constitution Act, 1982 does not really arise in this case. Wilson J. may well be right on this issue, but it should be left for consideration in a more appropriate case where its implications could be more fully assessed.

| Return to Topic Menu | Return to Main Menu |