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CROWN - Servants of the Crown - Agents of the Crown

Wednesday, March 01, 2017 @ 8:55 AM  

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Appeal by Taman from a decision dismissing her application for judicial review. Taman was formerly a federal prosecutor in the Regulatory and Economic Prosecutions and Management Branch of the Public Prosecution Service of Canada (PPSC). Her team was responsible for the prosecution of regulatory offences under various federal statutes, including the Lobbying Act and the Income Tax Act. Taman submitted a request to the Public Service Commission (Commission) pursuant to s. 114 of the Public Service Employment Act (PSEA) for permission to seek the nomination of a political party and, if successful, to run as that political party’s candidate in the 2015 federal election. She sought a leave of absence without pay beginning on the day she won the nomination and continuing through the election period. In the event that she was not successful, she volunteered to take a “cooling off” leave without pay and to take a non-prosecutorial position within the PPSC. The Commission rejected Taman’s request as it was not satisfied as required by subsections 114(4) and (5) of the PSEA that Taman could return to her position without being impaired or being perceived to be impaired in her ability to perform her duties impartially. Taman’s application for judicial review of the Commission’s decision was dismissed. The judge acknowledged that the Commission’s decision limited Taman’s rights under the Charter, but concluded that the decision was a proportionate balancing of the Charter rights in dispute and Taman’s ability to perform her duties in a politically impartial manner upon her return to work.

HELD: Appeal allowed. The decision of the Commission was set aside. The Commission failed to justify its refusal to grant Taman permission to seek public office. The Commission relied on the factors listed in the PSEA without showing how the presence of those factors led to its conclusion. The Commission did not distinguish between actual impairment of Taman’s ability to perform her duties in a politically impartial manner and a perception of impairment of her ability to do so. The Commission seemed to have proceeded on the basis of causal relationships that appeared to it to be self-evident. While the Commission identified autonomy, discretion and visibility as factors in its consideration of impairment, it had not indicated how those factors led it to its ultimate conclusion. Taman’s autonomy, discretion and visibility would have been the same before and after the election. If Taman’s political opinions did not colour the exercise of her discretion before the election, it was unclear how they would do so after the election. The Commission had not articulated its answer to this question and others in a manner that allowed the Court to assess the reasonableness of its conclusions. The decision lacked justification, transparency and intelligibility. It was not obvious that Taman’s candidacy would have raised an issue of prosecutorial independence. The issue for the Commission was not prosecutorial independence but prosecutorial partisanship. There was no utility of asking the Commission to engage in a fresh determination of Taman’s request for permission to seek elected office for purely collateral purposes, as the 2015 federal election had come and gone. Therefore, the matter was not returned to the Commission for a fresh determination.

Taman v. Canada (Attorney General), [2017] F.C.J. No. 7, Federal Court of Appeal, M. Nadon, J.D.D. Pelletier and A.F.J. Scott JJ.A., January 6, 2017. Digest No. 3640-009