This paper was developed to describe, in general terms, the current thinking on duty of loyalty in the federal public sector. Its purpose is help employees and managers understand the key concepts and provide some assessment criteria for specific cases. It is not a legal opinion. When assessing specific cases you should consult the Senior Official for Values and Ethics in your department and legal services.
The duty of loyalty has long been a fundamental value and requirement of the public service of Canada. In Canada's system of parliamentary democracy, public servants owe a duty of loyalty to their employer, the Government of Canada. This duty derives from the essential mission of the public service to help the duly elected government, under law, to serve the public interest. The duty of loyalty reflects the importance and necessity of an impartial and effective public service to achieve this mission.
The duty of loyalty is reflected in the "Values and Ethics Code for the Public Service", 2003, which has been adopted as a policy of the Government of Canada and forms part of the conditions of employment of the Public Service.
A significant number of cases involving the duty of loyalty have come to court. The cases typically result from judicial reviews of grievances on disciplinary action taken by the government as employer on the basis that the public servant's conduct is in breach of the duty of loyalty.
The principles, qualifications and factors emerging from these court judgments on the duty of loyalty, including a decision of the Supreme Court of Canada, can be summarized as follows:
- the Government is engaged in illegal acts;
- Government policies jeopardize life, health or safety; or
- the public servant's criticism has no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability.
Criticism may impair a public servant's ability to perform 1) his or her specific job or 2) to perform any public service job (i.e. suitability to remain in the public service), and hence justify disciplinary action. Public perception of that ability is as important as actual ability. An inference of impairment can be drawn in both cases, based on the principles and qualifications set out above, without the need for direct evidence.
Criticism that is not related to the job or department of the public servant may still be found to be subject to the duty of loyalty.
Relevant factors for determining whether these principles and qualifications are met in a given situation include:
The substance, context and form of the criticism:
- "Substance" refers to the content of the criticism;
- "Context" refers for example to the frequency of the criticism and the forum or media in which it is made;
- "Form" refers to the manner in which the criticism is expressed (e.g. restrained or vitriolic).
The position and visibility of the public servant (for example, a professional public servant such as a scientist making a public criticism relating to the public servant's area of professional expertise);
The degree to which a public servant can prove an allegation;
Whether the public servant takes steps to determine the facts before making public criticism;
Whether the public servant raises concerns internally and uses internal mechanisms before making public criticism;
Whether the public criticism is based merely on a policy disagreement;
Attribution of inappropriate motives.
For a fuller treatment of the duty of loyalty, including illustrations of how these considerations have been applied in court judgments, see the longer text.