This text describes the duty of loyalty, which has long been a fundamental value and requirement of the public service, from the perspectives of its policy and legal significance.
The first section of the text situates the duty of loyalty in the broad context of Canadian parliamentary democracy and the values of the public service which are necessary to support it. The second and longer section describes how the courts in Canada have interpreted and applied the duty of loyalty. Many cases have come before the courts, typically by way of judicial reviews, after grievances against disciplinary action imposed on a public servant for public criticism of the government, thereby breaching the duty of loyalty. The resulting court judgments clarify the meaning and scope of the duty of loyalty, and provide guidance to the government as employer and to individual public servants.
"Loyalty to the public interest, as represented and interpreted by the democratically elected government and expressed in law and the Constitution, is among the most fundamental values of public service".
This is one of the conclusions of "A Strong Foundation - Report of the Task Force on Public Service Values and Ethics", 1996, John C. Tait, Q.C, Chair ( "the Report") pp. 27, 54. Many other public service values, such as integrity, equity, fairness and impartiality, are linked to the value of loyalty or draw their strength from it (pp. 27-8, 54). The Report identifies "loyalty to the public interest", together with accountability to ministers - and through them to the citizens of Canada - and the rule of law as being among the key democratic values that underpin public service (p. 54).
The Report reaches these conclusions after an extensive analysis of the principles of democratic life in a parliamentary system, and the issues of responsible government and the accountability of public servants. It points out that it is "crucial for public servants, at all levels, to understand that the chief public service value is service to democracy, that there is none higher, and that, following professional advice and democratic deliberation, faithful execution of democratic decisions is what a public service is for, not to substitute for them some other definitions of the public good...Public servants must remember what they are - delegates of their minister. And what system they serve - a democratic one where elected officials have legitimacy to define the public interest" (pp. 16-17).
The duty of loyalty is reflected in the "Values and Ethics Code for the Public Service", 2003, ("the Code"), which drew heavily on the analysis and conclusions of the Report. Loyalty and other related values are placed in the broad context of the role of the public service of Canada. The opening passage of the Code describes the Public Service of Canada as "an important national institution, part of the essential framework of Canadian parliamentary democracy. Through the support they provide to the duly elected government, public servants contribute in a fundamental way to good government, to democracy and to Canadian society" (p. 5). The Code points out that "the Constitution of Canada and the principles of responsible government provide the foundation for Public Service roles, responsibilities and values" (p. 5). Furthermore, "The democratic mission of the Public Service is to assist Ministers, under law, to serve the public interest" (p. 6).
In enumerating public service values, the Code states that "public servants shall be guided in their work and their professional conduct by a balanced framework of public service values: democratic, professional, ethical and people values" (p. 7). "Democratic values" are summarized as "helping Ministers, under law, to serve the public interest" (p. 7). The first illustration of democratic values is: "Public servants shall give honest and impartial advice and make all information relevant to a decision available to Ministers". The second illustration explicitly introduces the concept of the duty of loyalty: "Public servants shall loyally implement decisions, lawfully taken" (p. 7).
The Code is stated to be a policy of the Government of Canada and "all public service activities should be consistent with [the Code]" (p. 11). Moreover, the Code forms part of the conditions of employment in the Public Service of Canada. At the time of signing their letter of offer, public servants acknowledge that the Code is a condition of employment (p. 12). "All public servants are responsible for ensuring that they comply with this Code and that they exemplify, in all their actions and behaviours, the values of public service" (pp. 12-13).
The duty of loyalty is by no means unique to the Public Service of Canada. Every Western democratic government has requirements that employees of their public administration be impartial and non-partisan. For example, the UK Civil Service Code states that: "Civil servants are servants of the Crown. Constitutionally, the Crown acts on the advice of Ministers and, subject to the provisions of this Code, civil servants owe their loyalty to the duly constituted Government" (s. 2).
The Values and Ethics Code is not the sole authoritative basis for the duty of loyalty in the Public Service of Canada. The courts of Canada have long recognized and applied the duty of loyalty as a matter of common law in the context of the public service. The duty of loyalty is therefore both a matter of policy and law.
Typically, the duty of loyalty is raised in court in the following way. The government as employer takes disciplinary action against a public servant on the basis that the public servant's conduct - by way of public criticism of the government, for example - is in breach of the duty of loyalty. The disciplinary action can take such forms as reprimand, suspension, or dismissal. Where the public servant chooses to contest the disciplinary action, a grievance or complaint is filed alleging that his or her conduct did not constitute a breach.
The grievance or complaint is adjudicated by a body such as the Public Service Labour Relations Board. In the event of a judicial review from that administrative tribunal, higher levels of court deal with the matter. Cases may go, by way of ultimate appeal, to the Supreme Court of Canada.
An analysis of court judgments is essential to an understanding of the extent of the duty of loyalty. Court cases are based on "real life" cases. They apply, define and qualify the duty of loyalty in light of specific fact situations which have arisen in the public service.
They confront and resolve issues such as the following. Can public criticism be justified in certain circumstances, such as if the government's acts being criticized are illegal or dangerous? Is criticism permissible if it has no impact on the public servant's ability to perform his or her duties or on the public perception of that ability? Does it matter if the criticism relates to the duties of the position or the policies and programs of the department in which he or she is employed, as opposed to an unrelated aspect of government activity? Does the position and visibility of a public servant make a difference? Does the duty of loyalty apply to professionals such as government scientists who are convinced that some government action is professionally unsound?
The courts have had also had to consider the following issues. Is the duty of loyalty absolute, or should it be balanced against other values, rights or freedoms, such as the freedom of expression? If balancing is to be done, what criteria apply? What does the duty of loyalty mean in the Charter era, given the guarantee of freedom of expression in the Canadian Charter of Rights and Freedoms? What proof is needed to demonstrate that the duty of loyalty has not been observed? Need a public servant prove an allegation against the government? Need a public servant raise concerns internally before making them public? Does it make a difference if the public servant approaches the media, or is approached by them?
The written reasons for judgment handed down by the courts in cases raising such issues, especially where the reasons enunciate principles of general application about the duty of loyalty that can be applied to other circumstances, provide valuable and authoritative guidance for the government as employer and for public servants.
The remainder of this text consists of an analysis of relevant court judgments in Canada, with a view to highlighting the principles in a way that is of greatest use in applying the duty of loyalty to "real life" situations.
It should be noted that there is a duty of loyalty in the private sector as well, as an implied term in employment contracts, but the extent of that duty is beyond the scope of this text. Similarly, this text does not deal with other related topics where some of the same principles may apply, namely political activity by public servants or conflict of interest involving public servants. This is because the courts in Canada have most often been called upon to apply the duty of loyalty to situations of public criticism of government
As early as the 19th century, there were judgments in Canada, England and the US dealing with the duty of loyalty, both in the private sector and the public sector. In Canada, there have been many court judgments and hundreds of arbitral awards dealing with the duty of loyalty in the public sector.
The following analysis is based on cases which shed light on the duty of loyalty as it applies to the public service of Canada. The analysis takes the following form. The leading case on the duty of loyalty, a judgment of the Supreme Court of Canada, is presented at length, together with a summary of the principles, qualifications and factors this case articulates. Clarifications of these considerations as derived from subsequent judgments are then identified, in the form of factors that are relevant to defining the duty of loyalty.