Public Service and Political Activity

The next federal election will take place on October 19th, the first instance of a fixed election date in Canadian federal politics.

It used to be the case that public servants, at both the provincial and federal levels, were subject to broad political activity prohibitions. This was seen as necessary to uphold the neutrality and professionalism of the public service in a democratic system.

The Charter of Rights and Freedoms changed things. Evolving attitudes probably also played a role. Today we have a more nuanced and workable system that balances the rights of citizens to participate in the democratic process with the need for a neutral and professional public service.

According to the Supreme Court, political expression is fundamental to the guarantee of freedom of expression, and is therefore entitled to a high degree of protection. Any limit on political expression is only justifiable if it furthers an important objective and is proportionate to this objective, i.e., the limitation is related to the objective, is as minimal as possible, and produces more good than harm.

The old rule for the federal public service, prohibiting Crown employees from engaging in any political activity, was considered not minimal but overkill, encompassing everyone from deputy minister to cafeteria worker, not taking into account either the nature of the public servant’s work or the type of political activity involved.

However, the court also accepted that restricting political activity is related to an important objective, namely maintaining the neutrality, professionalism, and loyalty of the public service, which is also a legitimate public expectation. The court has therefore allowed political activity restrictions that are justifiable. Restrictions can be based on:

  • the extent of the public servant’s policy advice,
  • the scope of discretion exercised by the public servant,
  • the visibility of the public servant’s position, and
  • the nature of the prohibited political activity.

In Ontario, these constraints developed by the Supreme Court were given expression in the Public Service of Ontario Act, 2006, and in its predecessor statute. In fact, Ontario is unusual in placing its political activity rules directly into legislation, as opposed to corporate policy. Political activity rules form Part V of the Act

Ontario created two categories of public servant. A “specially restricted” class of public servants in senior positions, such as directors, ADMs, and deputy ministers, and some tribunal members, is subject to more stringent rules. Members of this class can only engage in certain permitted political activities, such as voting and contributing money to a political party. Some members of this class may also seek authorization from the Conflict of Interest Commissioner to engage in other activities.

The “non-specially-restricted class” – basically everybody else, can engage in any type of political activity except that which is specifically restricted, like running for office, which can only be done while on a leave of absence.

And of course there are certain prohibitions that apply to both groups – and they are just common sense. For example, no one is allowed to engage in political activity while at work or in uniform or use government resources for political purposes.

The political activity rules in Ontario are carefully crafted and designed to meet the Supreme Court’s test for reasonable restrictions on political expression. Most importantly in my view, they are consistent with maintaining a public service which is neutral, professional and loyal on the one hand, but also part of a politically engaged citizenry on the other.

Since the establishment of our office, I have dealt with a number of political activity matters, including requests for both advice and determinations, which usually arise only during a municipal, provincial or federal election campaign. All of these matters have been dealt with based on the facts at hand and the rules outlined above.

Many public servants in Ontario may not wish to engage in political activity, but for those who do – and it is their right within limits, Ontario has a fair, transparent and balanced framework in place.

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