With an upcoming federal election, Canadians are preparing to decide who deserves their vote. A 2019 poll conducted for The Globe and Mail found that the biggest issue for voters is ethics in government.[1] This concern is not uniquely Canadian either. In the UK, a man sued recently selected Prime Minister Boris Johnson for “misconduct in public office.”[2] The claim against Johnson was that he deliberately misled the public during the EU referendum, and again during the general election, with the claim that “the UK gave the EU £350m a week.”[3] Just how false was this claim? The chairman of the UK Statistics Authority was so appalled that he wrote a letter to Mr. Johnson decrying the “clear misuse of official statistics”.”[4] Nevertheless, a judge refused to let the lawsuit proceed.[5]

What if there were a law that prevented politicians from lying? Surely charges levelled under such a statute would assist voters in their assessment of a political candidate’s ethics. Could such a law be constitutionally valid despite encroaching on a politician’s right to freedom of expression, which is protected by section 2 of the Charter?[6] This article discusses the relevant existing regulations, and previous decisions by the Supreme Court of Canada ("SCC") about laws regarding democratic fairness, protecting vulnerable groups, and prohibiting false news.

Some would argue that we do not need a law of this sort. “Lying about their views is just part of the game that candidates play.”[7] Others would argue that, as a Globe and Mail editorial puts it, “politicians need to be able to speak freely without fear of judicial reprisal.” According to this view, it should be left to the politicians and the media to draw attention to lies, and the voters to determine whom to trust.[8]

But laws and courts do regulate speech in a variety of other contexts. For example, food labels have to be truthful about ingredients.[9] Elon Musk found himself in trouble with the U.S. Security Exchange Commission for fraud because of a tweet that suggested Tesla might be going private; he was fined $20M.[10] If we are willing to go this far to protect the interests of potential consumers and shareholders, one would think we would try to protect voters at least equally, if not more.

Ad Standards Canada handles the regulation of advertising and is guided by the priorities of truth, accuracy, and fairness.[11] However, the Code the ASC follows explicitly excludes application to political or election advertising.[12] They do not want to “govern or restrict the free expression of public opinion or ideas.”[13]

Freedom of Expression

The Charter guarantee of freedom of expression protects “freedom of thought, belief, opinion and expression.” The SCC ruled that there are three underlying values guiding its purpose:

1. promotion of the “free flow of ideas essential” to democracy;
2. promotion of the “marketplace of ideas” where truth can be found through the competition of ideas; and
3. the “intrinsic value to the self-realization of both speaker and listener.”[14]

If a court finds there has been a restriction on freedom of expression, it must decide if the restriction is justifiable as a reasonable limit in a free and democratic society, a qualifier found in section 1 of the Charter.[15] To determine whether a restriction is a reasonable limit the courts conduct a balancing exercise. They consider the underlying objective of the action (which must have a pressing and substantial reason) and the benefits of the action and weigh those against the harmful effects.[16] If the government can prove these, among other considerations, a limitation of a Charter right is constitutional.

The purpose of a law preventing politicians from lying clearly limits freedom of expression; therefore, a section 1 analysis would be required. An older, and unconstitutional law similar to what this article is discussing, lacked the pressing and substantial objective required to restrict a Charter right. Below, this article will explain that law against ‘fake news’, and discuss how a pressing and substantial objective might now exist.

Crafting a Law Against Political Lies and Fake News

In 1992 the SCC struck down a law that prohibited the publication of any news, statement, or tale that the publisher knew to be false, “and that causes or is likely to cause injury or mischief to a public interest.”[17] The wording of the Criminal Code section as drafted was found to be too broad and, its objective was not pressing and substantial because it lacked any apparent purpose.[18]

Our plan to devise a law against lying seems to be off to rough start. However, the SCC did leave us some hope. They did note that “this is not to say that words cannot properly be constrained by the force of the criminal law.”[19] The law “could support criminalization of expression only on the basis that the sanction was closely confined to situations of serious concern.”[20]

But perhaps the biggest problem to overcome is determining what constitutes a lie. In 1992, the SCC observed that “the question of falsity of a statement is often a matter of debate, particularly where historical facts are at issue.”[21]

Determining the validity of facts is one thing, but it gets even more complicated when we begin to engage in epistemology: “the distinction between justified belief and opinion.”[22] The belief in the science around climate change is a great example. Is human caused climate change the truth if only 97% of scientists agree, or is a unanimous consensus required?

A Pressing and Substantial Reason

Nevertheless, the SCC has upheld limiting freedom of expression in the past in order to protect a vulnerable group from manipulation. In 1989, the SCC upheld a law that banned advertising directed at children under the age of 13 “for the protection of a group which is particularly vulnerable to the techniques of seduction and manipulation abundant in advertising.”[23]

In a 1990 decision where the vulnerable group was high school students, the SCC noted that “even if the message of hate propaganda is outwardly rejected, there is evidence that its premise of racial or religious inferiority may persist in a recipient’s mind as an idea that holds some truth.”[24] They also found that they should not “overplay the view that rationality will overcome all falsehoods in the unregulated marketplace of ideas.”[25]

The SCC historically seems more willing to uphold laws that limit Charter rights when the law is to protect a vulnerable group.

Voter Vulnerability

Have voters become a vulnerable group? With the rise of fake news, the growing difficulty of fact checking, and increased manipulation through the use of personal data and foreign interference, the electorate appears to be growing more and more vulnerable by the day.

In 2004 the SCC decided that limits on third party spending for election advertising are a constitutionally valid limitation on freedom of expression.[26] The SCC found multiple reasons why spending limits are a pressing and substantial concern; notably, promoting “equality in the political discourse” and ensuring “that voters have confidence in the electoral process.”[27] By promoting accessibility and fairness in the electoral system, confidence is bolstered; these outweigh the limit on “unlimited political expression.”[28]

In balancing the effects of spending limits, the court emphasized a previous finding that “[P]rotecting the fairness of referendum campaigns is a laudable objective that will necessarily involve certain restrictions on freedom of expression” (emphasis in original).[29]

The majority of the court drew on the vulnerability of voters. They emphasized that voters “must be presumed to have a certain degree of maturity and intelligence,” however, if third party advertising seeks to systematically manipulate voters, they may be seen as more vulnerable.[30]

The SCC upheld limiting freedom of expression for electoral fairness again in 2007, this time in the name of informational equality. The SCC upheld a law banning the publication of election results from the East coast prior to the closing of polls on the West coast.[31] The law prevented “the perception of unfairness created when some voters have general access to information that is denied to others.”[32] The SCC recalled from their earlier decision on third party spending that “ensuring that all voters receive the same information where possible” was an important objective.[33]

One could argue that as long as everyone is receiving the same lies, voters are being ensured access to the same information. However, the issue becomes the voters’ ability to educate themselves on what is the truth and what is a lie; which as we have seen is an increasingly arduous task. In the past the court has voiced concern for the vulnerable groups of “the young and the less educated - those segments of the population who are least able to inform themselves … and to protect themselves.”[34]

But perhaps the biggest hope comes from a recent Federal Court decision that required ‘Product of Israel’ labels to be removed from wines made in the West Bank.[35] The Court found that Canadians need to have accurate information about the origin of products in order to express their political views through purchasing.[36] Otherwise, their Charter right to freedom of expression would be limited.[37] It seems plausible then that the courts could uphold as constitutional a law that prevents politicians from lying in order to ensure that voters have access to accurate information, because like expressing political views through purchasing, voting is a protected form of freedom of expression.[38] 

Conclusion

Creating a law that prevents politicians from lying would be extremely difficult. It would need to be narrow, specific, and could not handcuff politicians unduly in the pursuit of truth and democracy. Not to mention, it could only catch undisputable facts. But we already regulate lies when it comes to things like food labelling, commercial advertising and publicly traded companies, and in Alberta the United Conservative government is creating a war room to counter “lies and misinformation” about the energy industry.[39] Why not a law that prohibits politicians from lying?.

The SCC has limited freedom of expression multiple times in the past in order to uphold objectives in the furtherance of democracy, and in order to protect a vulnerable group from manipulation. With today’s ubiquitous dissemination of fake news and politicians’ falsehoods, voters may well be a group deserving of such protection.

 

 

 

[1]Robert Fife & Steven Chase “Canadians view ethics in government as paramount issue in fall election, poll shows”, The Globe and Mail (16 June 2019), online: <theglobeandmail.com>.

[2]Michael Holden “British judges quash prosecution of PM candidate Johnson over Brexit campaign claim”, The Globe and Mail (7 June 2019), online: <theglobeandmail.com>.

[3]“Brexit: Boris Johnson ordered to appear in court over £350m claim”, BBC (29 May 2019), online: <bbc.com>.

[4]“Is that politician lying? In a democracy, only you can decide”, Editorial, The Globe and Mail (29 May 2019), online: <theglobeandmail.com>.

[5]Holden, supra note 2.

[6]Constitution Act, 1982, s 2(b), being Schedule B to the Canada Act 1982 (UK), 1982, c11.

[7]CM Melenovsky, “Not All Political Lies Are Morally Equal” (2018) 49:2 J Social Philosophy 294 at 296.

[8]“Is that politician lying? In a democracy, only you can decide”, supra note 4.

[9]Michael Skapinker “Should politicians get lying privileges?” Opinion, Financial Times (3 June 2019), online: <ft.com>.

[10] Ibid.

[11]Elizabeth Keith “This Legal Loophole Actually Allows Canadian Politicians To Lie In Their Election Campaigns”, Narcity (14 April 2019), online: <narcity.com>.

[12]Ad Standards, “The Canadian Code of Advertising Standards” (July 2019), online: Ad Standards <https://adstandards.ca/code/the-code-online/>.

[13]Ibid.

[14]R v Keegstra, [1990] 3 SCR 697 at 802 – 804, 117 NR 1 .

[15]Irwin Toy Ltd v Quebec (Attorney General), [1989] 1 SCR 927 at 979, 58 DLR (4^th) 577 .

[16]R v Oakes, [1986] 1 SCR 103 at 138 – 140, 26 DLR (4^th) 200; Dagenais v Canadian Broadcasting Corp, [1994] 3 SCR 835 at 887, 120 DLR (4^th) 12.

[17]R v Zundel, [1992] 2 SCR 731, 95 DLR (4^th) 202 ; Criminal Code, RSC 1985, c C-46, s 181.

[18]Zundel, supra note 17 at 764, 776 (see also 744-746 for a history of s 181).

[19]Ibid at 774.

[20]Ibid at 776.

[21]Ibid at 747.

[22]Oxford English Dictionary, (Online: Oxford University Press, 2019) sub verbo “epistemology”.

[23]Irwin Toy, supra note 15 at 987.

[24]Keegstra, supra note 14 at 747-748.

[25]Ibid at 763.

[26]Harper v Canada (Attorney General), 2004 SCC 33 .

[27]Ibid at para 92.

[28]Ibid at para 120-121.

[29]Ibid at para 121.

[30]Ibid at para 80.

[31]R v Bryan, 2007 SCC 12 .

[32]Ibid at para14.

[33]Ibid.

[34]RJR-MacDonald Inc. v Canada (Attorney General), [1995] 3 SCR 199 at 274, 127 DLR (4^th) 1.

[35]Sean Fine “Federal Court orders removal of ‘Product of Israel’ labels from West Bank wines”, The Globe and Mail (29 July 2019), online: <theglobeandmail.com>.

[36]Kattenburg v Canada (Attorney General), 2019 FC 1003 at para 117 .

[37]Ibid.

[38]Siemens v Manitoba (Attorney General), 2003 SCC 3 at para 41.

[39]Michelle Bellefontaine “Alberta energy ‘war room’ to be based in Calgary”, CBC (4 June 2019), online: <cbc.ca>.

This article was written by a law student for the general public.
Updated: May 31, 2017

33 (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

 

What is the Notwithstanding Clause?

Section 33 of the Charter of Rights and Freedoms is commonly referred to as the “notwithstanding clause”.[1] Provincial or federal governments can use section 33 when they want to protect a law that violates fundamental freedoms, legal rights, or equality rights. The clause is an acknowledgement that there can be situations where a government will want to pass a law, or maintain an existing law, that disregards Charter-protected rights or freedoms.

Why do we have a notwithstanding clause?

When the Charter was drafted, federal and provincial lawmakers were divided on including section 33 in the Charter.[2] Its supporters believed the clause would protect democracy by giving elected law-makers control over important issues and preventing the unelected judges from having too much power. Those opposed, including then Prime Minister Pierre Elliott Trudeau, thought that the clause could jeopardize the Charter’s purpose of protecting individual rights against the government.[3]

Supporters included provinces such as Alberta, Saskatchewan, and Manitoba, who were worried the Charter would limit their power to make necessary laws. Having section 33 in the Charter preserved provincial sovereignty.[4]  Including the notwithstanding clause secured these provinces’ support of the Charter.

When can it be used?

The notwithstanding clause is rarely used, and only when the government has powerful public policy reasons to justify it.[5] The clause can only be used for laws that affect fundamental freedoms in section 2 of the Charter, such as freedom of expression or freedom of religion, legal rights in sections 7-14 such as the right to life, liberty and security, and equality rights in section 15.[6]

For example, in 2000, Alberta tried to apply the clause to override same-sex marriage in the province. The Supreme Court had ruled that same-sex marriage was constitutional but the Alberta government did not want to follow this decision. Therefore, they added the notwithstanding clause to the Alberta Marriage Act to make it clear that marriage was only legal between a man and a woman. However, this use of the notwithstanding clause was found invalid because marriage is not in provincial jurisdiction.[7] Only the federal government can decide what marriages are legal.

How can it be used?

When a government decides to use the notwithstanding clause it must clearly state that its law will operate despite its potential to violate sections of the Charter.

The use of the notwithstanding power can only last for five years, after which it can be renewed for additional five-year periods.[8]  A practical effect of the five-year limit is that it generally coincides with the length of electoral terms. As a result, the public has an opportunity in an election to challenge their government’s decision to use the notwithstanding clause if they so wish.[9]

When has it been used?

As of May 2017, the notwithstanding clause has been used 17 times by the governments of Quebec, Alberta, Saskatchewan, and the Yukon.[10] Here are a few examples:

 Quebec

• Quebec did not sign the Constitution Act 1982 and subsequently passed legislation that added a standard notwithstanding clause to every law in force at the time.[11] The clause was added to every new law passed until December 2, 1985, when a new government stopped the practice.[12]
• In 1988, Quebec used the clause in response to a Supreme Court of Canada decision that the province’s law allowing French-only on commercial signs offended freedom of expression because companies could not express themselves in their language of choice. Quebec passed a new version of the same law with the notwithstanding clause attached. This new law allowed the French-only signs to continue. The law was not renewed when the five-year limit ran out.

Saskatchewan

• Saskatchewan added the clause to protect strike-ending legislation in 1986. The government used the clause because they thought the law forcing strikers back to work would violate freedom of association. However, the clause was removed when the Supreme Court said that the law would not affect Charter rights.[13]
• In 2017, Saskatchewan Premier Brad Wall announced his decision to use the notwithstanding clause to protect school choices for students and parents, regardless of their faith.[14] The Premier’s announcement was in response to a Saskatchewan court decision that would possibly jeopardize the funding for non-Catholic students who attend Catholic schools. Using the notwithstanding clause will allow the province to continue funding students regardless of their faith and school choice. The Ministries of Education and Justice are tasked with drafting the new law.[15] The court’s decision is currently on appeal.

Alberta

• In 1998, Alberta tried to use the clause to limit compensation to victims of a forced sterilization program. Forced sterilization had infringed the victims’ right to life, liberty and security of the person. However, the proposed bill was withdrawn due to public protest against it.[16]
• As mentioned earlier, Alberta also tried in 2000 to apply the notwithstanding clause to override same-sex marriage in the province.

 

For more information:

• Peter Lougheed, “Why a Notwithstanding Clause?” (Inaugural Merv Leitch QC Memorial Lecture delivered at the University of Calgary, 20 November 1991), (1998) Points of View no 6.
• Allan E. Blakeney, “The Notwithstanding Clause, the Charter and Canada’s Patriated Constitution: What I Thought We Were Doing” (2010) 19:1, 2 & 3 Const Forum Const 1.

 

---

[1] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 33 .

[2] Peter W Hogg, Constitutional Law of Canada, vol 2, 5^th ed (Scarborough: Thomson, 2007) (loose-leaf 2010 supplement) at 39.2. [Hogg].

[3] Peter Lougheed, “Why a Notwithstanding Clause?” (Inaugural Merv Leitch QC Memorial Lecture delivered at the University of Calgary, 20 November 1991) at 4.

[4]  Ibid at 2; Barbara Billingsley, “Section 33: The Charter’s Sleeping Giant” (2002) 21 Windsor YB Access Just 311 at 333; Hogg, supra note 2 at 39.2.

[5] Hogg, supra note 2 at 39.8.

[6] Charter, supra note 1, s 33(1).

[7] Hogg, supra note 2 at 39.2.

[8] Charter, supra note 1, ss 33(3)– (5).

[9]  Hogg, supra note 2 at 39.5.

[10]  Billingsley, supra note 4 at 339.

[11]  Hogg, supra note 2 at 39.1.

[12]  Ibid.

[13] RWDSU v Saskatchewan, [1987] 1 SCR 460.

[14] Stefani Langenegger, “Sask. to use notwithstanding clause to override Catholic school ruling”, CBC News (01 May, 2017), online: <www.cbc.ca/news/canada/saskatchewan/sask-notwithstanding-catholic-1.4093835>

[15] Good Spirit School Division No 204 v Christ the Teacher Roman Catholic Separate School Division No 212 and The Government of Saskatchewan, 2017 SKQB 109.

[16] Billingsley, supra note 4 at 341.

On June 29, 2007, the Supreme Court of Canada decided Baier v. Alberta [1]. The petitioners, four teachers and the Alberta Teachers’ Association, claimed that amendments to the Local Authorities Election Act (LAEA) violated their s. 2(b) Charter right to freedom of expression and their s. 15(1) equality rights. The amendments, enacted in 2004, required all school employees to resign or take a leave of absence if they ran for, and were elected as, trustees to municipal school boards.

The Alberta Court of Queen’s Bench ruled in favour of the petitioners, holding that the legislation violated s. 2(b) and was not justified as a reasonable limit under s. 1 of the Charter. The Court of Appeal reversed the decision, and the Supreme Court upheld their ruling in an 8 to 1 decision; Justice Fish dissented while Justices LeBel, Bastarache, and Abella concurred with the majority’s decision but for different reasons.

The majority of the Court held that the right to freedom of expression was not violated. The Court explained that there is no s. 2(b) right of access to “statutory platforms,” such as the political platform provided to a school trustee under LAEA [2]. Only in exceptional cases will s. 2(b) impose a positive obligation on the government to protect or assist an expressive activity. To qualify as an exceptional case, the petitioner must satisfy the three criteria established in Dunmore v. Ontario [3]:

1. The claim must be grounded in fundamental Charter freedoms rather than in a claim to access a particular statutory regime.
2. The claimant must establish the exclusion from the regime that permits a substantial interference with the exercise of that freedom.
3. The state must be truly responsible for that interference.

The Court found that although the statutory right under LAEA to be a school trustee was an expressive activity protected by s. 2(b), the Dunmore criteria for establishing a positive right were not met [4]. The claim was grounded in access to the particular statutory regime of school trusteeship, which is not a fundamental Charter freedom, and the LAEA exclusion did not substantially interfere with the petitioner’s freedom to express their opinions about the education system [5]. The Court suggested that school employees express their views by participating and making presentations at school board meetings, “lobby trustees, sit on school councils, write letters to newspapers, give media interviews, and write to MLAs and other public officials” [6].

Justices LeBel, Bastarche, and Abella dismissed the s. 2(b) claim entirely. In their view, s. 2(b) was not engaged because “the purpose of the claim in the instant case is to secure constitutional protection for a right to be elected to a management role in the local education system of the province of Alberta, but this falls outside the scope of the Charter unless the equality rights of s. 15 are engaged” [7].

In his dissent, Justice Fish argued that s. 2(b) was violated and not justified under s. 1. Justice Fish placed importance on the fact that LAEA prohibited political participation on democratically-elected municipal boards, and that this prohibition appeared to be deliberate and was permanent [8]. He argued against the majority’s narrow interpretation of Dunmore as well as their argument that school employees had other means of expression available. According to Justice Fish, school trusteeship was a “qualitatively different means of expression” from the majority’s recommendations for expressing similar views. As a result, its prohibition met the Dunmore criterion of substantial interference.

The majority dismissed the petitioner’s claim that LAEA violated s. 15(1) equality rights by discriminating against school employees as compared to municipal employees. The Court held that the occupational status of a school employee is not analogous to the enumerated grounds listed in s. 15(1) (that is, race, national or ethnic origin, colour, religion, sex, age or mental or physical disability). Because school employees were not discriminated against based on unchangeable, personal characteristics, the Court held that they were not protected by s. 15(1). Also central to the Court’s decision was the fact that teachers are not historically a deprived or disadvantaged group.

Justice Fish did not comment on the s. 15(1) claim.

Cases

• Baier v. Alberta, 2007 SCC 31.
• Dunmore v. Ontario, [2001] 3 S.C.R. 1016.

Sources

• “Court upholds Alberta ban on teachers as trustees” (29 June 2007) CBC News, online: <http://www.cbc.ca/canada/story/2007/06/29/ab-teachers.html>.
• “Top court backs barring teachers from school boards” (30 June 2007) The Globe and Mail online:http://www.theglobeandmail.com/servlet/story/LAC.20070630.TEACH30/TPStory/National.

[1] Baier v. Alberta, 2007 SCC 31 [Baier].
[2] Ibid. at para. 37.
[3] Dunmore v. Ontario, [2001] 3 S.C.R. 1016 [Dunmore]..
[4] As explained at para. 55 in Baier, a positive right requires the government to legislate or otherwise act to support or enable an expressive activity, while a negative right involves the appellants seeking freedom from government legislation or action suppressing an activity in which people would otherwise be free to engage, without any need for any government support or enablement.
[5] Baier, supra note 1 at 43.
[6] Ibid. at para. 47.
[7] Ibid. at para. 77.
[8] Ibid. at para. 95.

In the wake of 9/11 and a number of anthrax attacks in the United States, the Emergency Response Team (ERT) at Health Canada stockpiled antibiotics and smallpox vaccines as a precautionary measure in the event of a bioterrorist attack. Dr. Shiv Chopra, a senior scientist specializing in microbiology (who did not work directly for the ERT) made a series of statements to the press criticizing Health Canada’s decision.

Canada’s federal public service has mechanisms and policies in place for internal dispute resolution. The policies exist to ensure that government employees do not make public statements that might impair the trust and confidence that Canadians have in the operation of their government. After each incident with the press Dr. Chopra was made aware of these policies. At these meetings Dr. Chopra asserted his fundamental right to freedom of expression, which is protected under section 2(b) of the Canadian Charter of Rights and Freedoms.

Ultimately Dr. Chopra was disciplined for his statements to the press with a five-day suspension from work without pay. Dr. Chopra appealed the sanction to the Canada Public Service Staff Relations Board (PSSRB).

The issue in Chopra v. Treasury Board (Health Canada) was balancing an individual’s right to expression as a Canadian citizen while maintaining a fair, effective and impartial public service [1]. In other words, how far does Charter protection extend to public servants who wish to criticize government policies?

1. [Fraser v. P.S.S.R.B.] The Supreme Court of Canada outlined the duty of loyalty that public servants owe to the Government of Canada. The Court held that public servants have two dimensions to their jobs. The first relates to the employee’s tasks and the other relates to the public’s perception. To ensure a balance is struck, public servants have a duty to exercise restraint in their actions that criticize public policy. Fraser held that “a government employee is as free as a private citizen, however, to criticize government policies unrelated to his or her job or department” [2].
2. noted three instances where an employee was able to publicly express opposition to government policies: (1) when the government engaged in illegal acts; (2) in cases where the policies jeopardize the “life, health, or safety” of the public servant or the general public; and (3) where the comment had no impact on the employee’s ability to perform his or her duties effectively or on the public perception of that ability [3].

The Board upheld the suspension because Dr. Chopra failed to meet the criteria in Fraser. In Chopra’s case, the government was not engaged in illegal acts. The court did rule that his comments were detrimental to his working relationship with his supervisor and would affect his work performance [4]. Dr. Chopra’s attacks on the Minister and Health Canada were “repeated and derogatory” [5]. The Board held that this limited his usefulness as a public servant.

Forgie v. Canada (Immigration Appeal Board) followed Fraser. Forgie held that federal employees must attempt to resolve issues internally before expressing public criticism of government policy [6]. The PSSRB held that:

There is a heavy onus on an employee who makes public criticisms of questionable practices to establish that he has done everything reasonable to resolve the issue internally. This is a facet of the loyalty owed to him by his employer. It is not enough for an employee to claim that he doubted the internal avenues would lead to a successful resolution of the question [7].

This principle was affirmed in the 2001 Haydon v. Canada decision [8].

In addition to not meeting the Fraser test, the PSSRB also upheld the suspension on other grounds. Namely, Dr. Chopra did not use the available internal review and discussion mechanisms for dealing with his grievance before resorting to public criticism of the Minister and the department’s decision as set out in both Forgie and Haydon. Although, the Board noted that even if he had used the appropriate channels for relaying his grievances, his comments about the Minister were still inappropriate.

Cases:

Fraser v. P.S.S.R.B., 1985, CanLII 14 (S.C.C)

Forgie v. Canada (Immigration Appeal Board), (Board file 166-2-15843); aff’d [1987] F.C.J. No. 541 (C.A.)

Chopra v. Treasury Board (Health Canada) 2003 PSSRB 115

Haydon v. Canada (T.D.), 2000 CanLII 16081 (F.C.)

 

Further Reading:

Freedom of Expression Background

Freedom of the Press and Self-Censorship in the Media

[1] Chopra v. Treasury Board (Health Canada) 2003 PSSRB 115 at 76.
[2] Fraser v. P.S.S.R.B., 1985, CanLII 14 (S.C.C) at 28.
[3] Fraser supra note 2 at 41.
[4] Chopra, supra note 1 at 104.
[5] Chopra, supra note 1 at105.
[6] Forgie v. Canada (Immigration Appeal Board), (Board file 166-2-15843); aff’d [1987] F.C.J. No. 541 (C.A.), at page 26.
[7] Forgie supra note 6 at page 26.
[8] Haydon v. Canada (T.D.), 2000 CanLII 16081 (F.C.). at 120.