The Privilege of Public Employment

Is Dunsmuir’s treatment of public employees consistent with the principles it articulated?

Matthew Lewans, University of Alberta

The desire to clarify the parameters of judicial review looms large in Dunsmuir v New Brunswick. In their opening paragraph, Bastarache and LeBel JJ propose to reassess the law of judicial review, because it “has been marked by ebbs and flows of deference, confounding tests and new words for old problems, but no solutions that provide real guidance”. Fifty paragraphs later, they set out a simplified standard of review analysis. So at least from a methodological perspective, one might propose to assess whether and to what extent the decision renders the practice of judicial review more efficient. However, I want to evaluate Dunsmuir’s theoretical foundation as opposed to exploring whether it provides a more efficient framework for judicial review.

In order to do develop this theoretical critique, it is worth comparing Dunsmuir with other paradigmatic cases in the pantheon Canadian public law like Roncarelli v Duplessis (1959) and Nicholson v Haldimand-Norfolk Police Commissioners (1978). These cases are regarded as paradigmatic, because they articulate and defend fundamental principles of fair treatment and substantive review in an attempt to verify the legality of administrative law. This 20th century renaissance resulted in doctrinal reforms that echo Charles Reich’s argument that various forms of government largesse should not be considered mere “privileges” which can be revoked arbitrarily by state actors, but relevant material interests (which he provocatively dubbed “new property”) which warrant constitutional constraints on administrative action. Thus, in Roncarelli Rand J rejected the notion that the plaintiff’s liquor license was a mere privilege to be enjoyed at the pleasure of the Premier, but “a matter of vital importance” which was essential to Frank Roncarelli’s economic livelihood. A similar line of reasoning can be detected in celebrated decisions from other jurisdictions during the same period, most dramatically in Goldberg v Kelly (1970) when the United States Supreme Court held that welfare recipients were entitled to procedural due process under the 14th Amendment prior to the termination of their benefits.

Unsurprisingly, apex courts extended this same right to procedural fairness to public employees. Thus, in Ridge v Baldwin (1964) Lord Reid declared that the decision of the watch committee to dismiss chief constable Charles Ridge was “not a thing to be done lightly”, because it deprived him of his economic livelihood, damaged his professional reputation, and jeopardized his pension benefits as he was nearing the end of a 33-year career in the public service. Therefore, in Lord Reid’s opinion Ridge retained a legally protected interest in maintaining his employment, one which demanded a modicum of natural justice as in cases concerning property rights or the revocation of someone’s professional status. Therefore, he concluded that the governing principles were not to be drawn from the common law regarding “master and servant” nor cases regarding “offices at pleasure”, which would have enabled the watch committee to dismiss Ridge for any reason or no reason at all. Instead, he held that the decision was governed by “an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation.”

Fifteen years later, Laskin CJ cited Ridge as authority for the proposition that a probationary officer was entitled to a hearing at common law. Because the consequences of the decision to terminate Arthur Nicholson’s employment were “serious”, Laskin CJ held that “the old common law rule, deriving much of its force from Crown law, that a person engaged as an officer holder at pleasure may be put out without reason or prior notice ought itself to be re-examined.” In 1980, William Wade lauded Ridge v Baldwin in his Hamlyn Lectures as a constitutional fundamental, saying that “the courts once again accept, as they had always done except in their period of amnesia, that part of their duty was to require public authorities to respect certain basic rules of fairness in exercising power over the citizen.”  

While the majority opinion in Dunsmuir pays tribute to fundamental principles, that commitment evaporates when it applies them to the facts at hand. When Bastarache and LeBel JJ declare that “[t]he function of judicial review is…to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes”, they echo the principle of legality as articulated in cases like Roncarelli, Goldberg v Kelly, Ridge v Baldwin, and Nicholson. It is this same commitment to fairness which led the Adjudicator to conclude that Dunsmuir, like Ridge and Nicholson, was entitled to a pre-termination hearing of some sort; and it was this same commitment to reasonable justification that led the Adjudicator to conclude that s 100.1(2) of the Public Service Labour Relations Act, which provided non-unionized public employees the right to file a “grievance with respect to discharge, suspension or financial penalty”, entitled him to inquire into the employer’s reasons for the dismissal.

Despite that affirmation, the majority opinion concludes that “in the specific context of dismissal from public employment, disputes should be viewed through the lens of contract law rather than public law.” More surprisingly, the Court held that even though the Adjudicator’s decision was entitled to deference, the decision was unreasonable because the adjudicator had interpreted the PSLRA as allowing him “to inquire into the reasons for discharge where the employer had the right not to provide or even have such reasons”. Therefore the Adjudicator’s decision, in the Court’s estimation, “was fundamentally inconsistent with the employment contract and, thus, fatally flawed.”

In short, the juxtaposition between the statements of principle at the outset of decision and the application of those principles to the facts makes Dunsmuir a peculiar case from a theoretical perspective. Despite affirming the role of fairness and reasonableness as safeguards against arbitrary administrative decisions, the decision resurrects the notion that public employment (at least for those who are not Crown ministers or judges) is a privilege which can be terminated for any reason or no reason at all so long as employees are provided with reasonable notice. To rephrase the famous analogy in Lord Greene’s opinion in Associated Provincial Picture Houses, Ltd v Wednesbury, the upshot seems to be that a public school board really can dismiss a red-haired school teacher just because she has red hair, so long as it supplies her with pro forma reasons for her dismissal and adequate severance. But to require a public employer to afford some sort of pre-termination hearing well… that’s just unreasonable.

The Detestable Attestation

Thoughts on the federal government’s attempt to make religious groups capitulate to its views on abortion

The federal government dishes out money to various organizations to hire young people for summer jobs. But starting this year, the government decreed that there will be no money for any groups that do not

attest that both the job [for which young people will be hired] and the organization’s core mandate respect individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms as well as other rights. These include reproductive rights and the right to be free from discrimination on the basis of sex, religion, race, national or ethnic origin, colour, mental or physical disability, sexual orientation or gender identity or expression.

Despite the seeming generality (the absurd generality, as I will explain below) of this statement, the government’s focus is quite clearly on “women’s rights and women’s reproductive rights, and the rights of gender-diverse and transgender Canadians”, and more specifically on “sexual and reproductive rights — and the right to access safe and legal abortions”, which are said to be “at the core of the Government of Canada’s foreign and domestic policies”.

Predictably ― except, it would seem, for the government itself ― many religious groups, who were among the frequent recipients of funding under the summer jobs programme in the past, and whose contributions the Prime Minister himself claims to value, are objecting to this attestation. Since they do not share the government’s vision of “sexual and reproductive rights”, especially when it comes to abortions, they are reluctant to profess their “core mandate”‘s consistency with these rights. The government argues that the objectors misunderstand the point of the “attestation” ― it is enough for it that the group not be primarily anti-abortionist ― but for religious groups themselves, implying that their pro-life views are somehow not “core” is out of question. As they see it, they are being denied access to a government benefit for which they would otherwise qualify on the basis of their religious and conscientious beliefs.

They are quite right, as many commentators have already pointed out. John Ibbitson, in The Globe and Mail, equates the attestation with “making applicants sign on to a Liberal values manifesto”. In the National Post, John Ivison echoes this analysis and adds that “there is a hierarchy of rights in this country: at the apex are those rights the Liberals find agreeable, at its base are those they find abhorrent”. In a CBC Opinion piece, David Millar Haskell points out that the government’s insistence that religious organizations can sign the attestation “shows a complete lack of awareness of what it means to be ethical”, because it cannot be embraced with engaging in the “practice of equivocation and mutable morality”.  A Globe editorial points out that “[t]he Charter protects the[] freedom to dispute the contents of the constitution and its interpretation by the courts”, and that the government’s position “that arguing against a right is as bad as infringing it” is “chilling”. Writing for Policy Options, Brian Bird sums up the issue by noting that the government “has weaponized the Charter, using it as a sword against nonconforming citizens”, instead of the “shield for citizens against the abuse of state power” that it is supposed to be.

All this, I think, is correct. Much like the Law Society of Ontario’s “Statement of Principles” requirement, the “attestation” is a values test that conditions eligibility for a public benefit on the would-be recipient’s agreement with the government. It is an obvious instance of compelled speech and, more importantly, an interference with freedom of conscience. The government cannot ask people to profess or to express particular beliefs, even as a condition of providing a benefit. The Charter was meant to break what Steven Smith (the law and religion scholar, not to be confused with Stephen Smith, the contract theorist) recently described as “the centuries-old pattern in which governments have attempted to compel dissenters or outliers to publicly affirm and acquiesce to the dominant orthodoxy” ― the government’s attempt to invoke it to perpetuate this pattern notwithstanding.

In one of the few attempts to defend the government that I have seen, Dale Smith notes that governments always channel public funding to  causes and groups whose morality they approve of, and away from others. That much is true ― and worthy of condemnation. But Mr. Smith is missing a couple of important distinctions. For one thing, there’s a difference between a completely discretionary decision to allocate funding this way or that, and using a values test to deny funding to a beneficiary who otherwise meets set criteria on which everyone is judged. And second, I think that, as Prof. Smith suggests, there is something particularly odious about governments, not content with discriminating against citizens for their views, demanding that citizens also actively express or endorse beliefs that they do not hold.

And as for the government’s claims ― supported by Daphne Gilbert in an Ottawa Citizen op-ed ― that the objectors misunderstand the attestation, they simply ignore the fact that, when it comes to religious (and, I have argued, conscientious) obligations, the state cannot tell people what theirs are. If a religious group cannot dissociate its “core mandate” from its anti-abortionist stance, neither Professor Gilbert, nor Workforce Development and Labour Minister Patty Hajdu, nor Prime Minister Justin Trudeau is entitled to tell it that it ought to be less scrupulous.

I’d like to add a few more points which I mostly have not seen made in other critiques of the federal government’s position. The first concerns the meaning and scope of the “attestation”. While a few rights are singled out ― a point to which I will return shortly ―, on its face the “attestation” requires the support of “individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms as well as other rights”. What does this even mean? Quite clearly, the rights one is required to support are not limited to Charter rights, but some “other” ones as well. So how about some other non-Charter protected rights? For instance, must applicants to the Summer Jobs Programme support property rights (which, though not in the Charter, are part and parcel of Canadian law)? And then, of course, there is the question of “Charter values”, which Justices Lauwers and Miller recently noted in Gehl v. Canada (Attorney General), 2017 ONCA 319 , “are not a discrete set, like Charter rights, which were the product of a constitutional settlement and are easily ascertained by consulting a constitutional text”,  [80] and which, moreover, “can easily be in conflict”. [82] In other words, the government is asking people to “attest” to their support of an indeterminate and indeterminable set of potentially contradictory rights and “values”. This is contrary not only to the freedom of conscience, but also to the principle of the Rule of Law.

All that said, while the “attestation” is seemingly extraordinarily broad, it is obvious that its true purpose has to do with the government’s support with a fairly narrow set of equality and reproductive rights described as being “at the core of” its policy. (By the way, how “core” are these things to the government’s “mandate”, actually? I’d say that they are pretty tangential to most of what it does; the government may disagree, but this of course only makes more pressing the question of how the government thinks it can define for others what their “core mandate” is.) Mr. Ivison is right to describe this approach as constructing a “hierarchy of rights”. Reproductive and equality rights are at the top; their advancement is the government’s priority. In the middle, a vast number of unknown “other rights” are ostensibly important too, but the government doesn’t seem to care about them very much. And at the bottom, as Mr. Ivison says, are those rights ― like freedom of conscience ― that get in the way of its agenda. The reason I dwell on this, though, is that this is not the first time the government has done something like this. In the context of the Court Challenges Programme, of the celebrations of constitutional anniversaries, and of proposed legislation supposed to foster Parliament’s engagement with the constitution, the government plays favourites with constitutional provisions, playing up its commitment to some while ignoring others. The government is treating the constitution not as a binding constraint, but as a political prop, to be used in order to advance its agenda, ignored when unnecessary, and overridden when inconvenient.

My concluding observations concern the reasons the government got into this mess, and the way we might avoid repetitions in the future. We have come to accept the idea, of which Lord Acton warned as a great danger in his Lectures on Modern History, of the “[g]overnment [as] the intellectual guide of the nation, the promoter of wealth, the teacher of knowledge, the guardian of morality, the mainspring of the ascending movement of man”. (289) In its role as promoter of wealth, the government  decides to subsidize youth employment ― having first made young people unemployable thanks to minimum wage laws that don’t account for their lack of skill and experience enacted in its capacity of guardian of morality. And then, since it is also the intellectual guide of the nation and the mainspring of progress, the government decides to use subsidies as an occasion to inculcate the proper understanding of (some) rights to those who want to receive them. As Lord Acton realized, such a government must be oppressive; it “governs, and all other things obey”. (289) While much of the criticism of the “attestation” is couched in partisan terms, as if it were a peculiarly Liberal pathology, the truth is that the view of government from which its imposition results is shared by all of the principal federal and provincial political parties, and indeed by most of the critics. To be sure, the existence of the criticism shows that one need not be a fire-breathing classical liberal to oppose government overreach. But unless we recover something of Lord Acton’s suspicion of governmental beneficence we will never do more than fight rear-guard battles against its encroachments; we will never allow ourselves to strike back at its ineradicable tendency to overreach.

Whether groups that receive funding under the Summer Jobs Programme support (its interpretation of) human rights is none of the government’s business. Citizens are not obliged to support rights ― only to respect them to the extent that they are reflected in laws that bind them, which must be clear enough for the citizens to understand what it is that they must do. It is the government’s job to comply with the constitution ― all of it, and not just the bits it likes. But to keep the government to its proper sphere, we must first remember what that sphere is.