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Judge upholds leave denial for federal election

Thursday, October 29, 2015 @ 8:00 PM | By Cristin Schmitz

An ex-Crown who ran unsuccessfully in the federal election is considering appealing a decision that she contends effectively implements a broad ban on federal prosecutors running for Parliament.

Federal Court Justice Catherine Kane’s Oct. 13 ruling upheld a December 2014 decision of the federal Public Service Commission to deny Emilie Taman permission to seek the nomination and run for the NDP in the recent federal election, and to take an unpaid leave of absence which would have enabled her to return to her post as a prosecutor in the regulatory and economic branch of the Public Prosecutions Service of Canada.

Subsection 113 (1) of the federal Public Service Employment Act (PSEA) states federal employees “may engage in any political activity so long as it does not impair, or is not perceived as impairing, the employee’s ability to perform his or her duties in a politically impartial manner.”

Taman argued the commission’s refusal to let her run and give her unpaid leave was unreasonable because it failed to proportionally balance her Charter rights and the objectives of the PSEA.

Justice Kane agreed that the commission’s denial of Taman’s request did limit the ex-Crown’s ss. 3 and 2(b) Charter rights to run for office, and to freedom of expression. However, she ruled the commission reasonably concluded that the incursion on Taman’s Charter rights was outweighed by the need to ensure that the Office of the Director of Public Prosecutions (DPP) and its prosecutors are independent and politically impartial, and perceived by the public to be so in discharging their mandate, which includes prosecuting federal politicians and lobbyists.

“The decision reflects that the Commission considered all the facts and, based on its overall view, determined that the applicant’s rights could not be fully protected while at the same time maintaining the objective of political impartiality in the public service,” wrote Justice Kane, a senior criminal law policy official with the federal Department of Justice before joining the bench in 2012.

“The reality is that it is not always possible to strike a perfect balance either between competing Charter rights or between Charter rights and other rights and interests. Some rights may be required to give way to others in a manner which will be considered disproportionate by one party or the other.”

The judge also held it reasonable for the commission to reject Taman’s suggestions that instead of compelling her to choose between running for office or her job, the DPP could reduce the negative impact on her Charter rights by, for example, reassigning her to a non-prosecutorial position, or not assigning her politically sensitive files, when she returned to her post. The commission accepted the DPP’s assertion that this was not feasible in an office where the main work is prosecutions.

Taman, the daughter of ex-Supreme Court Justice Louise Arbour and former Ontario Deputy Attorney General Larry Taman, lost to incumbent Mauril Belanger in the longtime Liberal stronghold of Ottawa-Vanier in the Oct. 19 election, receiving 12,299 votes to Belanger’s 36,150.

The Federal Court’s judgment acknowledges that the DPP clearly opposes political involvement for PPSC prosecutors. Yet “the Commission’s decision is not a prohibition against all federal prosecutors, as the decision was made based on consideration of the applicant’s specific request and related to her specific duties,” Justice Kane wrote. “Other requests would be determined on a case-by-case basis.”

Taman’s counsel, Christopher Rootham of Ottawa’s Nelligan O’Brien Payne, said his client is considering an appeal. He told The Lawyers Weekly the rationale justifying why Taman was denied permission to run and take an unpaid leave of absence — to preserve the public’s confidence in the DPP’s independence and political neutrality — would seem to apply to all prosecutors.

“I think the only way to read it is [the judge] only left [the door] open a crack” to federal prosecutors being able to run for office, Rootham said. “We are disappointed with the result and, if we were to appeal, we would certainly bring to the Federal Court of Appeal’s attention the broader implications of this case to prosecutors, and to all public servants.”

Leonard MacKay, the federal Crown in Halifax who leads the Association of Justice Counsel which is supporting Taman’s judicial review, said the union is concerned that a blanket ban on prosecutors running for office has effectively been created.

“The job description that was provided to the [commission] in relation to Ms. Taman…would describe virtually any prosecution job in Canada,” MacKay said. “It wasn’t specialized, or as high level, as the Federal Court might make it out to be. The description really is of any front-line prosecutor in Canada.

“The union’s position is that the vast majority of prosecutors…should be allowed to run.”

MacKay pointed out that many provinces permit at least some of their Crowns to run for office.

He argued the court also gave “short shrift” to Taman’s argument that the PPSC could take measures to mitigate the impact on her Charter rights, such as erecting firewalls and not assigning her the relatively rare cases that are politically sensitive.

“I think they can accommodate that operationally, and they just decided not to because they feel strongly about this issue.

“If we are talking about balancing an individual’s Charter rights versus the constitutional convention of impartiality and loyalty of civil servants, maybe it needs to go to a higher level.”

The PPSC did not comment on the judgment.

Apart from her judicial review application, Taman is grieving what she maintains was her dismissal from the PPSC. Her former employer contends she abandoned her post by running for office after the commission denied her permission to do so.