Firing of prosecutor in election bid upheld
A federal prosecutor who lost her job because she’s running as a candidate in the federal election has also lost her bid to have the Federal Court overturn the decision.
Ottawa-Vanier NDP candidate Emilie Taman was seeking to set aside the Public Service Commission’s refusal to let her run, arguing it was “unreasonable” and failed to balance her obligations to be a loyal and impartial public servant with her constitutional right to seek public office.
In her ruling, Federal Court Justice Catherine Kane said the commission’s decision was a “proportionate” balancing of Taman’s rights as a citizen and her job as an impartial public servant. Kane said the commission had protected her constitutional rights as “fully as possible” in the situation.
Taman felt the commission put too much emphasis on the Public Service Employment Act, which governs public service neutrality, at the expense of Charter rights.
The commission has the exclusive right to grant leave for public servants who want to run as candidates in elections. Public servants who get approval can take leave without pay during the election period. If elected, they must leave the public service. In Taman’s case, the commission refused to give her permission. She ran anyway and was fired. Kane said it wasn’t possible to fully protect Taman’s right to freedom of expression and to run in an election and let her return to her job as a federal prosecutor if she lost the election on Oct. 19.
“While she is not prohibited from pursuing her rights, the cost of doing so is the loss of her position as a federal prosecutor and public servant,” wrote Kane.
Taman’s battle for public servants’ political rights became a cause célèbre.
She has the highest profile of 13 federal public servants running in this election, since she took the PSC to court over its refusal to let her become a candidate. While waiting for a hearing, she decided to defy the commission’s order and run anyway, losing her job for it.
Taman has filed a grievance to fight her dismissal and that process is still underway.
The Association of Justice Counsel, which represents Justice Canada lawyers, backed Taman in her challenge because it feared that the PSC’s decision sets the stage for a “blanket prohibition” on federal prosecutors running for office.
One issue is that the prosecution service’s management recommended that the PSC reject Taman’s leave because her ties to a political party would undermine the office’s independence and her perceived impartiality if she lost and returned to work.
“I don’t want this decision to heighten the chill felt across the public service that is leaving many fearful of engaging publicly in the democratic process,” Taman said. “Many public servants have been granted leave to run in the election. The decision is specific to federal prosecutors.”
In the election, Taman has argued for more respect for the public service and repairing the relationship between bureaucrats and politicians while bringing back the critical role of experts, scientists and fact-based public policy.
Taman said her case was aimed at clarifying the rules and guidelines for public servants seeking to run in elections.
Taman had hoped the court would recognize that police officers or prosecutors in all provinces other than New Brunswick have the right to seek election and said the provinces have found ways to mitigate any concerns about impartiality if these workers return to their jobs.
“I have profound respect for the judicial process,” Taman said. “I had hoped for a different outcome given that the charter-protected right to run for office has been accommodated by prosecution services in virtually every province across Canada.”