Present: Dickson C.J. and Beetz, McIntyre, Chouinard*, Lamer, Le Dain and La Forest JJ.
*Chouinard J. took no part in the judgment.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Division of powers ‑‑ Province restricting political activity of provincial civil servants and Crown employees in federal elections ‑‑ Whether or not restrictions intra vires the province ‑‑ Constitution Act, 1867, ss. 91 , 92(1) , (4) , (13) ‑‑ Constitution Act, 1982, s. 45 ‑‑ The Public Service Act, R.S.O. 1970, c. 386, ss. 12(1), (2), (3), (4), (5), 13(1), (2), 14, 15, 16, now R.S.O 1980, c. 418.
The Ontario Public Service Employees' Union is bargaining agent for Government of Ontario employees subject to The Public Service Act and each of the individual appellants is a Crown employee, a civil servant and a member of the appellant union. Each individual appellant wishes to engage in political activities currently prohibited by The Public Service Act, including: running for election to Parliament without taking a leave of absence; canvassing and soliciting funds on behalf of federal political parties; and expressing opinions in public on federal political issues. The appellants are concerned that pursuit of these political activities would subject them to disciplinary measures pursuant to The Public Service Act. A motion for an order declaring ss. 12‑16 of the Act unconstitutional was heard prior to the coming into force of the Charter and proceeded simply on distribution of powers grounds. The motion was denied by Labrosse J. The Court of Appeal affirmed this decision and the underlying rationale that provincial jurisdiction was grounded in s. 92(13) of the Constitutional Act, 1867. The three constitutional questions stated before the Supreme Court of Canada dealt with ss. 12‑16 of The Public Service Act. Were these sections unconstitutional or inoperative in that (1) they purported to restrain provincial civil servants and Crown employees from engaging in certain federal political activity, (2) they contravened ss. 2, 3 and/or 15(1) of the Charter, and (3) if so, whether or not they were justified under s. 1 of the Charter. Following this Court's decision on a preliminary issue that it would not hear or decide Charter issues, the case proceeded on submissions based upon the distribution of legislative powers and argument relying upon certain statements in Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455.
Held: The appeal should be dismissed and the first constitutional question answered in the negative.
Per Beetz, McIntyre, Le Dain and La Forest JJ.: The impugned provisions constitute an ordinary legislative amendment of the constitution of Ontario, within the meaning of s. 92(1) of the Constitution Act, 1867 , and they also relate to the tenure of provincial office within the meaning of s. 92(4). The legislation cannot be constitutionally justified on the sole basis that they are in pith and substance labour relations legislation and therefore a matter of property and civil rights in the province. The impugned provisions are not related to the field of federal elections.
In so far as this legislation can be said to confer rights, individual or collective, upon Ontario residents to have an impartial civil service, such rights are not civil but rather public or political rights. Although the Act provides for the general regulation of the hiring, dismissal and terms and conditions of employment of the provincial public service, many of its provisions, including the impugned provisions, can only be explained and justified by the fact that the employment in question is public employment. They cannot, therefore, be grounded only in s. 92(13) of the Constitution Act, 1867 but can be fully grounded in s. 92(1) and (4).
The constitution of Ontario is not to be found in a comprehensive, written instrument called a constitution. An enactment can generally be considered as an amendment of the constitution of a province when it bears on the operation of an organ of the government of the province, provided it is not otherwise entrenched as being indivisibly related to the implementation of the federal principle or to a fundamental term or condition of the union, and provided of course it is not explicitly or implicitly excepted from the amending power bestowed upon the province by s. 92(1), such as the offices of Lieutenant‑Governor and of the Queen. The fact that a province can validly give legislative effect to a prerequisite condition of responsible government does not necessarily mean it can do anything it pleases with the principle of responsible government itself. Thus, it is uncertain, to say the least, that a province could touch upon the power of the Lieutenant‑Governor to dissolve the legislature, or his power to appoint and dismiss ministers, without unconstitutionally touching his office itself. The principle of responsible government could, to the extent that it depends on those important royal powers, be entrenched to a substantial extent. The power of constitutional amendment given to the provinces by s. 92(1) does not necessarily comprise the power to bring about a profound constitutional upheaval by the introduction of political institutions foreign to and incompatible with the Canadian system.
The provisions impugned here are constitutional for they bear on the operation of the Ontario Public Service, which is an organ of government, and they impose on its members the duty to abstain from certain political activities in order to implement the principle of impartiality of the public service which is considered as an essential prerequisite of responsible government. It can similarly be said that the public service in Ontario is a part of the executive branch of the government of Ontario.
The impugned provisions are not related to the exclusively federal subject of federal elections. Rather than affecting federal elections per se, these provisions create a disability from membership in the Ontario Public Service, thereby affecting a provincially created relationship.
This disability extended to federal elections in order to ensure global political independence for provincial officers. The object of political discourse, the ultimate form of political activity, remains indivisible even in federations with divided jurisdictions. Political activities in the federal field, therefore, had to be included in the impugned provisions to ensure the impartiality of the provincial public service. The alternative would have made the legislation miss its target altogether. The aim of the legislation, far from violating the federal principle, was to reinforce it and to secure the operation of responsible government within a federal framework; its effects on federal political activities were necessarily incidental. The constitutional validity of the impugned provisions may also be supported under s. 92(4) of the Constitution Act, 1867 , which in any event buttresses the argument already made under s. 92(1).
In a distribution of powers case, once it is demonstrated that the enacting legislature is competent, the balancing of conflicting values depends on the political judgment of such legislature and cannot be reviewed by the courts without their passing upon the wisdom of the legislation.
The fundamental right in Canada to participate in certain political activities is not infringed by the impugned legislation; federal and provincial elections are only affected in an incidental way. The basic structure of the Constitution established by the Constitution Act, 1867 contemplates the existence of certain political institutions, including freely elected legislative bodies at the federal and provincial levels. Neither Parliament nor the provincial legislatures may enact legislation which would substantially interfere with the operation of this basic structure. Quite apart from Charter considerations, the legislative bodies in this country must conform to these basic structural imperatives and can in no way override them.
Per Dickson C.J.: The Public Service Act is directed to the general regulation of the hiring, dismissal, and terms and conditions of employment in the public service and in essence governs the establishment, functions, responsibilities and employment relationships of the Ontario Public Service. Viewed in its entirety, it is easily and explicitly authorized by s. 92(4) of the Constitution Act, 1867 concerning provincial offices and appointments. The Act, which deals with many of the traditional components of an employer‑employee relationship, also falls within the province's property and civil rights power, since labour relations has long been a subject matter generally within provincial jurisdiction under s. 92(13). Constitutional authority granted under s. 92(4) and (13) extends to the specific prohibitions against political activity in ss. 12‑16 of the Act. There was no reason, given the Act's validity as a whole under both s. 92(4) and (13), to consider s. 92(1) with the attendant difficulties of assigning a precise content to the concept of "a provincial constitution".
The doctrine of interjurisdictional immunity is not a particularly compelling doctrine given its inconsistency with the basic pith and substance doctrine that a law "in relation to" a provincial matter may validly "affect" a federal matter. Furthermore Parliament, while it can easily enact appropriate laws effecting paramountcy over conflicting provincial laws, has not done so here. The Court, in light of the federal government's intervention in support of the Ontario law and its legislation based on the same constitutional approach adopted by Ontario, should be particularly cautious about invalidating a provincial law.
Appellants argued that the prohibitions were overbroad in that the prohibitions applied to all civil servants without distinguishing between the types of jobs performed and that they covered too wide a range of political activities. Overreach in the sense here used is not arguable in a distribution of powers case.
Appellants also argued, relying on a statement in Fraser v. Public Service Staff Relations Board, that Canadian constitutional jurisprudence recognized the existence of certain fundamental political rights and freedoms in the citizens to participate in federal political activities. Freedom of speech and expression is a fundamental animating value in the Canadian constitutional system. No single value, however, no matter how exalted, can bear the full burden of upholding a democratic system of government and some underlying and important values may even conflict. It would be inappropriate to enter into a detailed application of the Fraser principles to the facts of the present case because none of the individual appellants has actually been subjected to disciplinary proceedings.
Per Lamer J.: The Public Service Act is authorized by s. 92(4) of the Constitution Act, 1867 ; there was no need to consider s. 92(1) or (13).
Cases Cited
By Beetz J.
Considered: Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; In re Initiative and Refer‑ endum Act, [1919] A.C. 935; distinguished: McKay v. The Queen, [1965] S.C.R. 798, reversing [1964] 1 O.R. 641, reversing [1963] 2 O.R. 162; referred to: Re United Glass & Ceramic Workers of North America and Domglas Ltd. (1978), 19 O.R. (2d) 353; Maritime Bank of Canada (Liquidators of) v. Receiver‑General of New Brunswick, [1892] App. Cas. 437; Attorney‑General of Ontario v. Mercer (1883), 8 App. Cas. 767; Re: Resolution to amend the Constitution, [1981] 1 S.C.R. 753; Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016, affirming [1978] C.A. 351; R. v. Ulmer, [1923] 1 W.W.R. 1, 1 D.L.R. 304; Fielding v. Thomas, [1896] A.C. 600; Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182; Valin v. Langlois (1879), 5 A.C. 115, affirming (1879), 3 S.C.R. 1; Attorney‑General for Canada v. Attorney‑General for Ontario, [1898] A.C. 247; Lenoir v. Ritchie (1879), 3 S.C.R. 575; Reference re Minimum Wage Act of Saskatchewan, [1948] S.C.R. 248; Johannesson v. Municipality of West St. Paul, [1952] 1 S.C.R. 292; Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218; Reference re Alberta Statutes, [1938] S.C.R. 100; Switzman v. Elbling, [1957] S.C.R. 285.
By Dickson C.J.
Overruled: McKay v. The Queen, [1965] S.C.R. 798; referred to: Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; Toronto Electric Commissioners v. Snider, [1925] A.C. 396; John Deere Plow Co. v. Wharton, [1915] A.C. 330; Great West Saddlery Co. v. The King, [1921] 2 A.C. 91; Attorney‑General for Manitoba v. Attorney‑General for Canada (Manitoba Securities Case), [1929] A.C. 260; Commission du Salaire Minimum v. Bell Telephone Co., [1966] S.C.R. 767; Walter v. Attorney General of Alberta, [1969] S.C.R. 383; Cardinal v. Attorney General of Alberta, [1974] S.C.R. 695; Attorney General of Quebec v. Kellogg's Co. of Canada, [1978] 2 S.C.R. 211; Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754; Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; Oil Chemical and Atomic Workers International Union v. Imperial Oil Ltd., [1963] S.C.R. 584; Re C.F.R.B. and Attorney‑General for Canada, [1973] 3 O.R. 819; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573.
By Lamer J.
Overruled: McKay v. The Queen, [1965] S.C.R. 798.
Statutes and Regulations Cited
Canada Elections Act, R.S.C. 1970 (1st Supp.), c. 14.
Canada Elections Act, S.C. 1960, c. 39, s. 71.
Canadian Charter of Rights and Freedoms , ss. 2 , 3 , 15(1) .
Constitution Act, 1867 , ss. 58 ‑70, 82‑87, 91, 92(1), (4), (13).
Constitution Act, 1982 , s. 45 .
Crown Employees Collective Bargaining Act, 1972, S.O. 1972, c. 67.
Executive Council Act, R.S.O. 1970, c. 153.
Legislative Assembly Act, R.S.O. 1970, c. 240.
Official Languages Act, R.S.C. 1970, c. O‑2.
Public Service Act, R.S.O. 1970, c. 386, ss. 2, 3, 10, 12(1), (2), (3), (4), (5), 13(1), (2), 14, 15, 16, 23, 24, 26, 27, 28, 28a, now R.S.O 1980, c. 418.
Public Service Employment Act, R.S.C. 1970, c. P‑32, s. 32.
Representation Act, R.S.O. 1970, c. 413.
Authors Cited
Clement, W. H. P. The Law of the Canadian Constitution, 2nd ed. Toronto: Carswells, 1904.
Garant, Patrice. La fonction publique canadienne et québecoise. Québec: Presses de l'Université Laval, 1973.
Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Carswells, 1985.
APPEAL from a judgment of the Ontario Court of Appeal (1980), 31 O.R. (2d) 321, 118 D.L.R. (3d) 661, dismissing an appeal from a judgment of Labrosse J. (1979), 24 O.R. (2d) 324, 98 D.L.R. (3d) 168. Appeal dismissed; the first constitutional question is answered in the negative.
Stephen T. Goudge and Ian McGilp, for the appellants.
Blenus Wright and Carol Creighton, for the respondent.
Graham R. Garton, for the intervener the Attorney General of Canada.
Réal A. Forest and Alain Gingras, for the intervener the Attorney General of Quebec.
William M. Wilson, for the intervener the Attorney General of Nova Scotia.
Richard C. Speight, for the intervener the Attorney General for New Brunswick.
Joseph J. Arvay, for the intervener the Attorney General of British Columbia.
Robert G. Richards, for the intervener the Attorney General for Saskatchewan.
William Henkel, Q.C., and Robert J. Normey, for the intervener the Attorney General for Alberta.
The following are the reasons delivered by
1. The Chief Justice‑‑This appeal involves an important area of constitutional law, namely, the scope of provincial jurisdiction to regulate certain political activities of provincial civil servants and Crown employees.
I
The Facts
2. The Ontario Public Service Employees' Union is bargaining agent for approximately 50,000 employees of the Government of Ontario who are subject to The Public Service Act, R.S.O. 1970, c. 386, now R.S.O. 1980, c. 418, of that province. Marie Wilkinson is employed by the Ontario Ministry of Community and Social Services as a counsellor at a centre for the care of the mentally retarded. Edward Faulknor is employed by the Ontario Ministry of Revenue as an assessor. Russell Smith is employed by the Ministry of Natural Resources as a laboratory technician.
3. Each of the individual appellants is a Crown employee, a civil servant and a member of the appellant union. Each individual appellant wishes to engage in political activities currently prohibited by The Public Service Act, including: running for election to Parliament without taking a leave of absence; canvassing and soliciting funds on behalf of federal political parties; and expressing opinions in public on federal political issues. The appellants are concerned that pursuit of these political activities would subject them to disciplinary measures pursuant to The Public Service Act.
II
The Legislation
4. The general thrust of the Ontario Public Service Act is the regulation of the hiring, dismissal and terms and conditions of employment in the public service. Within this general context there are five provisions which prohibit public servants from engaging in some political activities. These sections read as follows:
12.‑‑(1) Except during a leave of absence granted under subsection 2, a Crown employee shall not,
(a) be a candidate in a provincial or federal election or serve as an elected representative in the legislature of any province or in the Parliament of Canada;
(b) solicit funds for a provincial or federal political party or candidate; or
(c) associate his position in the service of the Crown with any political activity.
(2) Any Crown employee, other than a deputy minister or any other Crown employee in a position or classification designated in the regulations under clause u of subsection 1 of section 29, who proposes to become a candidate in a provincial or federal election shall apply through his minister to the Lieutenant‑Governor in Council for leave of absence without pay for a period,
(a) not longer than that commencing on the day on which the writ for the election is issued and ending on polling day; and
(b) not shorter than that commencing on the day provided by statute for the nomination of candidates and ending on polling day,
and every such application shall be granted.
(3) Where a Crown employee who is a candidate in a provincial or federal election is elected, he shall forthwith resign his position as a Crown employee.
(4) Where a Crown employee who has resigned under subsection 3,
(a) ceases to be an elected political representative within five years of the resignation; and
(b) applies for reappointment to his former position or to another position in the service of the Crown for which he is qualified within three months of ceasing to be an elected political representative,
he shall be reappointed to the position upon its next becoming vacant.
(5) Where a Crown employee has been granted leave of absence under subsection 2 and was not elected, or resigned his position under subsection 3 and was reappointed under subsection 4, the period of the leave of absence or resignation shall not be computed in determining the length of his service for any purpose, and the service before and after such period shall be deemed to be continuous for all purposes.
13.‑‑(1) A civil servant shall not during a provincial or federal election canvass on behalf of a candidate in the election.
(2) Notwithstanding subsection 1, a deputy minister or any other Crown employee in a position or classification designated in the regulations under clause u of subsection 1 of section 29 shall not at any time canvass on behalf of or otherwise actively work in support of a provincial or federal political party or candidate.
14. Except during a leave of absence granted under subsection 2 of section 12, a civil servant shall not at any time speak in public or express views in writing for distribution to the public on any matter that forms part of the platform of a provincial or federal political party.
15. A Crown employee shall not during working hours engage in any activity for or on behalf of a provincial or federal political party.
16. A contravention of section 11, 12, 13, 14 or 15 shall be deemed to be sufficient cause for dismissal.
5. Most of these prohibitions are qualified by leave of absence provisions. This case arose because the individual appellants either wanted to take part in some of the prohibited activities after working hours, or sought, and were refused, leaves of absence to engage in them.
III
Procedural History
6. 1. Supreme Court of Ontario
7. A motion brought on behalf of the appellants before Labrosse J. for an order declaring unconstitutional ss. 12, 13, 14, 15 and 16 of The Public Service Act was denied: (1979), 24 O.R. (2d) 324, 98 D.L.R. (3d) 168. The motion was heard prior to the date on which the Canadian Charter of Rights and Freedoms came into force and proceeded simply on distribution of powers grounds. The challenge to the Ontario law was that it could not limit in any way the activities of the appellants in a federal election because jurisdiction over federal elections rested exclusively with Parliament.
8. The position of the Attorney General for Ontario was that the entire law, including the prohibitions as applied to federal elections, was authorized by s. 92(1) , (4) and (13) of the Constitution Act, 1867 which provide:
92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next herein‑after enumerated; that is to say,‑‑
1. The Amendment from Time to Time, notwithstanding anything in this Act, of the Constitution of the Province, except as regards the Office of Lieutenant Governor.
...
4. The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers.
...
13. Property and Civil Rights in the Province.
It should be noted that s. 92(1) is now, with some modification of wording but not of substance, s. 45 of the Constitution Act, 1982 .
9. At the hearing of the motion, Labrosse J. accepted that the Act, including prohibitions, was essentially a labour relations law and therefore valid under s. 92(13). He noted that the Act provides for the general regulation of the hiring, dismissal, and terms and conditions of employment of the civil service. The impugned sections, therefore, were found to be, in pith and substance, enacted to govern public sector labour relations in the province. In so far as they affected political activities in federal elections, Labrosse J. said they did so incidentally, as part of a wider legislative scheme to regulate labour relations.
10. 2. The Ontario Court of Appeal
11. A unanimous three‑judge panel of the Ontario Court of Appeal ((1980), 31 O.R. (2d) 321, 118 D.L.R. (3d) 661) affirmed both Labrosse J.'s decision and the underlying rationale that provincial jurisdiction was grounded in s. 92(13). Although The Public Service Act includes restrictions on the federal political activities of employees, MacKinnon A.C.J.O., for the Court, found that the Act was essentially labour relations legislation and the prohibitions were conditions of employment designed to preserve the impartiality of the public service. As such, the Act, including the prohibitions, fell within provincial jurisdiction over property and civil rights.
12. MacKinnon A.C.J.O. included an overview of the constitutional significance of the political impartiality of the public service which he held to be crucial to the viability of a system of responsible government in Canada. He asserted that the public has a right to an impartial public service. The Public Service Act was intended to protect the civil rights of Ontario residents and was accordingly valid in a second sense under s. 92(13) of the Constitution Act, 1867 .
13. Finally, although he did not decide the point, because of his conclusions about s. 92(13), MacKinnon A.C.J.O. said there was "considerable force" in the Attorney General's arguments based on s. 92(1) and (4) of the Constitution Act, 1867 .
14. 3. The Supreme Court of Canada
15. Leave to appeal was granted by this Court. The following are constitutional questions as stated by Laskin C.J. and as revised and supplemented by Dickson C.J.:
1. Are ss. 12, 13, 14, 15 and 16 of The Public Service Act, R.S.O. 1970, c. 386, as amended, unconstitutional insofar as they purport to restrain provincial Civil Servants and Crown Employees from engaging in certain federal political activity?
2. Do ss. 12, 13, 14, 15 and 16 of The Public Service Act, R.S.O. 1970, c. 386 as amended, infringe or deny the rights and freedoms guaranteed by ss. 2, 3 and/or 15(1) of the Canadian Charter of Rights and Freedoms insofar as they purport to restrain provincial Civil Servants and Crown Employees from engaging in certain federal and provincial political activity?
3. If ss. 12, 13, 14, 15 and 16 of The Public Service Act, R.S.O. 1970, c. 386 as amended, infringe or deny ss. 2 and 3, and/or 15(1) of the Canadian Charter of Rights and Freedoms , are these sections justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982 ?
16. At the start of the hearing of the appeal before this Court, a preliminary issue was raised concerning the hearing of argument on Charter issues. It was contended by the Attorney General for Ontario, supported by several intervening Attorneys General, that the Court should not address the Charter issues because all of the activities in the case were pre‑Charter and neither of the Ontario courts had heard Charter arguments. After argument, the Court decided (Dickson C.J. and Chouinard and Le Dain JJ. dissenting) that the Court would not hear or decide the Charter issues. In the result, the case proceeded on submissions based upon the distribution of legislative powers and a hastily constructed argument relying upon certain statements in Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455.
IV
The Distribution of Powers
17. The first step in any distribution of powers case is to characterize the law in question. This is not the ultimate legal step; it is not to classify the law as coming under one of the heads of s. 91 or s. 92. It is simply a preliminary step, namely to identify and describe the dominant features, the essential coverage, of the law. The Act with which we are here concerned is, as mentioned above, directed to the general regulation of the hiring, dismissal, and terms and conditions of employment in the public service. In essence it governs the establishment, functions, responsibilities and employment relationships of the Ontario Public Service.
18. In light of this description, it can be seen that the Act, viewed in its entirety, is easily and explicitly authorized by s. 92(4) of the Constitution Act, 1867 which gives the provinces jurisdiction over "the establishment and tenure of provincial offices and the appointment and payment of provincial officers". Additionally, since The Public Service Act deals with many of the traditional components of an employer‑employee relationship and since labour relations has long been a subject matter generally within provincial jurisdiction under s. 92(13) of the Constitution Act, 1867 (see Toronto Electric Commissioners v. Snider, [1925] A.C. 396, and many subsequent cases), it follows that The Public Service Act is within provincial property and civil rights jurisdiction. Because the Act as a whole is clearly valid under both s. 92(4) and (13), I see no reason to embark upon a consideration of s. 92(1). I am reinforced in this conclusion by the difficulty of assigning a precise content to the concept of "a provincial constitution".
19. But what of the specific prohibitions against political activity in ss. 12‑16 of The Public Service Act? Does the constitutional authority for the Act, viewed as a whole, extend to the prohibitions? In light of the overall labour relations thrust of The Public Service Act it is reasonable to characterize ss. 12‑16 of the Act as being also labour relations provisions. The prohibitions against certain types of political activity are essentially terms and conditions of employment and can be supported, therefore, under s. 92(13). Similarly, these prohibitions are terms and conditions of public employment. As such, they are clearly enacted in relation to the establishment and tenure of provincial offices and are therefore valid under s. 92(4) of the Constitution Act, 1867 .
20. The appellants, as I understand their position, do not really deny these conclusions as a matter of general distribution of powers analysis. They do, however, deny the conclusions on two other bases: first, that the prohibitions against political activity by provincial public servants in federal elections are outside the scope of provincial s. 92 jurisdiction; secondly, that the prohibitions are overbroad. It is to these two arguments that I now turn.
21. 1. The Appellants' Federalism Arguments
22. The crux of the appellants' federalism position is that The Public Service Act, admittedly valid in most respects, cannot prohibit the political activities of Ontario public servants in federal elections because:
(1) federal elections are within the exclusive domain of Parliament, and
(2) such a law does not meet the "in the province" limitation on the various heads in s. 92 of the Constitution Act, 1867 .
The appellants buttress these arguments by reference to the principle of interjurisdictional immunity and to this Court's decision in McKay v. The Queen, [1965] S.C.R. 798.
23. (a) Interjurisdictional Immunity
24. The appellants' first argument is based on the principle of interjurisdictional immunity which posits that legislation enacted by one order of government cannot interfere with, or have an impact on, subject matters under the jurisdiction of the other order of government. The doctrine had its origins in the so‑called "company law cases" where it was held that provincial laws could not sterilize or impair the status or essential powers of a federally incorporated company. See John Deere Plow Co. v. Wharton, [1915] A.C. 330; Great West Saddlery Co. v. The King, [1921] 2 A.C. 91; Attorney‑General for Manitoba v. Attorney‑ General for Canada (Manitoba Securities Case), [1929] A.C. 260.
25. After its initial development in the company cases, the doctrine expanded and had its greatest success in the context of the application of provincial laws to federal works and undertakings. The doctrine came to stand for the proposition that a provincial law could not affect a vital part of the management and operation of a federal undertaking. See, for example, Commission du Salaire Minimum v. Bell Telephone Co., [1966] S.C.R. 767. This formulation of the doctrine is important for two reasons. First, it extended the doctrine into new and important areas. "Federally incorporated companies" is not a particularly large field; "federal works and undertakings" is. Secondly, by using the terminology of "affecting a vital part" rather than the earlier phrasing of "sterilization" or "impairment", the Court perhaps signalled a broader reach for the doctrine.
26. However, even though the doctrine of interjurisdictional immunity has arguably expanded since its company law origins, it is, in my opinion, not a particularly compelling doctrine. Professor Hogg has offered two strong reasons to doubt its value (Constitutional Law of Canada (2nd ed. 1985), at p. 331). The first, doctrinal, reason is:
The theory behind the results [in the cases in which the doctrine has been applied] appears to be that federal heads of power not only confer power on the federal Parliament, but also operate "defensively" to deny power to the provincial Legislatures. In my view, this theory is inconsistent with the basic pith and substance doctrine‑that a law "in relation to" a provincial matter may validly "affect" a federal matter. And, indeed, for every case asserting an interjurisdictional immunity there are dozens which deny such an immunity by application of the pith and substance doctrine.
The second, policy, reason is:
From a policy standpoint, the immunity of federal undertakings seems unnecessary, because the federal Parliament can, if it chooses, easily protect undertakings within federal jurisdiction from the operation of provincial laws by enacting appropriate laws which will be paramount over conflicting provincial laws.
27. I favour both of these arguments of caution about the scope of the interjurisdictional immunity doctrine. The history of Canadian constitutional law has been to allow for a fair amount of interplay and indeed overlap between federal and provincial powers. It is true that doctrines like interjurisdictional and Crown immunity and concepts like "watertight compartments" qualify the extent of that interplay. But it must be recognized that these doctrines and concepts have not been the dominant tide of constitutional doctrines; rather they have been an undertow against the strong pull of pith and substance, the aspect doctrine and, in recent years, a very restrained approach to concurrency and paramountcy issues. See, for example, Walter v. Attorney General of Alberta, [1969] S.C.R. 383; Cardinal v. Attorney General of Alberta, [1974] S.C.R. 695; Attorney General of Quebec v. Kellogg's Co. of Canada, [1978] 2 S.C.R. 211; Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754; Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161. In light of these decisions, I am not prepared to extend the doctrine of interjurisdictional immunity into a field‑‑federal elections‑‑which is unrelated to either the company law cases or the federal undertakings cases, the two historical roots of the doctrine.
28. Furthermore, as Professor Hogg implies, the federal Parliament always has a powerful weapon‑‑its own legislation. If Parliament does not approve of the application of a provincial law to a matter within federal jurisdiction it can easily legislate to prevent the unwanted application. In the present case, the Canada Elections Act, R.S.C. 1970 (1st Supp.), c. 14, deals with permitted and prohibited activities in federal elections. Some of the provisions of that Act relate to various kinds of disqualification from certain political activities. If Parliament wanted to defend against the prohibitions contained in ss. 12‑16 of the Ontario Public Service Act it could do so. It hasn't. Indeed, it has done the opposite. By prohibiting federal public servants from engaging in certain activities during provincial elections, Parliament has indicated that it shares the approach (and the view on legality) of the Ontario legislature. It may be worth adding that most provincial legislatures have enacted legislation limiting the political activity of public servants in both federal and provincial elections.
29. I think it is important to note, and attach some significance to, not only the similar federal legislation but also the fact that the federal government intervened in this appeal to support the Ontario law. The distribution of powers provisions contained in the Constitution Act, 1867 do not have as their exclusive addressees the federal and provincial governments. They set boundaries that are of interest to, and can be relied upon by, all Canadians. Accordingly, the fact of federal‑provincial agreement on a particular boundary between their jurisdictions is not conclusive of the demarcation of that boundary. Nevertheless, in my opinion the Court should be particularly cautious about invalidating a provincial law when the federal government does not contest its validity or, as in this case, actually intervenes to support it and has enacted legislation based on the same constitutional approach adopted by Ontario.
30. (b) McKay v. The Queen
31. The appellants, however, support their argument with strong reliance on an important and factually relevant case, McKay v. The Queen. In McKay the Court held, by a majority of five‑four, that a municipal by‑law prohibiting the display of signs on residential property was inapplicable to federal election signs. In other words, the Court read down the law so that it would not apply in an impermissible context. The gist of the majority judgment, written by Cartwright J., was that the subject matter of federal elections was within the exclusive jurisdiction of Parliament and that a provincial law could not interfere in any way with this subject matter. He said, at p. 804:
I cannot think that it was the intention of the Council to so enact or that it was the intention of the Legislature to empower it to do so. Such an enactment would, in my opinion, be ultra vires of the provincial legislature. The power of the legislature to enact such a law, if it exists, must be found in s. 92 of the British North America Act. It is argued for the respondent that it falls within head 13, "Property and Civil Rights in the Province." Whether or not the right of an elector at a federal election to seek by lawful means to influence his fellow electors to vote for the candidate of his choice is aptly described as a civil right need not be discussed; it is clearly not a civil right in the province. It is a right enjoyed by the elector not as a resident of Ontario but as a citizen of Canada.
The appellants contend that the current appeal raises a virtually identical issue. They say that the Ontario law prohibits certain types of participation in federal elections and that, on the authority of McKay, such restrictions are unconstitutional.
32. The respondent seeks to distinguish McKay by relying on MacKinnon A.C.J.O.'s judgment in this case in the Court of Appeal at pp. 334‑35 (O.R.):
It is interesting to note that the majority does not say, presumably because the by‑law itself was not under attack, what was the pith and substance of the by‑law. Further, the Court there was concerned with a quasi‑criminal offence under the general by‑law. In the instant case the Act creates no offence; it is a matter of possible dismissal from the civil service. There was, in other words, an absolute prohibition in the McKay case; in the instant case if the individual were not prepared to accept the limitations of employment imposed upon him, he could seek a leave of absence or leave his job. I can only repeat that I view the legislation here under attack as legislation with relation to labour relations in the province and I do not think that the McKay case is of assistance on the facts of this case.
33. The intervener Attorney General of Canada suggests a different line of distinction between McKay and this case (paragraph 6 of its factum):
...in McKay ... the effect of the municipal by‑law was to proscribe indiscriminately the exercise of a right generally enjoyed by citizens of Canada. There was no proper nexus between the purpose of the by‑law and its alleged "incidental" effect on property owners. In the present case, however, it is submitted that the special relationship of public servants to government provides the link between control over labour relations and the regulation of partisan political activity. [Emphasis in original.]
34. With great respect, I am not persuaded by attempts to distinguish McKay. First, I fail to see the significance, in a federalism sense, between prohibition and curtailment. The distinction suggested by the Attorney General of Canada is perhaps stronger. The purpose of the by‑law in McKay was undoubtedly esthetic‑‑to ensure that lawns were not cluttered with signs, especially (one presumes) commercial signs. Federal election signs, which would be erected only every three or four years and only for several weeks, do not really fit within that esthetic purpose. There is, in other words, arguably a lack of a nexus between the purpose of the by‑law and its application to federal election signs.
35. Nevertheless, although it is maybe possible logically to distinguish McKay, my own view is that it was wrongly decided. I agree with Martland J.'s dissent (for four judges) to the effect that the by‑law was in relation to property, that it was of general application and that it could permissibly have an incidental effect on certain activities in a federal election campaign. I also agree with Professor Hogg's critique of McKay (pp. 328‑29 and 332):
It must be recalled that the "pith and substance" doctrine, exemplified by Bank of Toronto v. Lambe, is that a law which is in relation to a matter within jurisdiction ... is not objectionable just because it affects a matter outside jurisdiction . . . . Surely, therefore, the minority in McKay were right in upholding the impugned by‑law, even in its application to federal election signs. Certainly, the majority did not explain why the pith and substance doctrine should not apply. Indeed, less than two years earlier, in the Oil Chemical Workers case (1963), the Supreme Court of Canada had decided, by a majority of four to three, that a provincial labour law could validly prohibit union donations to political parties (federal as well as provincial) of funds obtained by compulsory deduction from workers' pay. Obviously, a prohibition of union contribution has a more serious, and more biased, impact on the federal electoral process than a prohibition of residential lawn signs; and yet the prohibition of union contributions was upheld as a valid incident of a labour relations law.
...
...I welcome the tendency in the latest cases in the Supreme Court of Canada to limit interjurisdictional immunity by liberal application of the pith and substance doctrine. In A.‑G. Que. v. Kellogg's of Canada (1978), a provincial law prohibiting cartoon‑style advertising directed at children was held to be applicable to advertising on television (a federally‑regulated medium). In Construction Montcalm v. Minimum Wage Commission (1978), a provincial minimum wage law was held to be applicable to a contractor building a runway for an airport (a federal undertaking) on federal Crown land. In Four B Manufacturing v. United Garment Workers (1979), a provincial labour relations law was held to be applicable to a business owned by Indians on an Indian reserve. In each case, Laskin C.J. in dissent asserted immunity from the provincial law, but Martland J. for the majority in Kellogg's and Beetz J. for the majority in Construction Montcalm and Four B, finding that the pith and substance of the law was a matter within provincial jurisdiction (that was not controversial, of course), held that the law could also validly affect the federal matter to which it purported to apply. In the light of these decisions, it seems unlikely that the McKay case would be decided the same way today.
36. I agree with this analysis. As Professor Hogg asserts, McKay is difficult to reconcile with the Court's decision in a very similar case, Oil Chemical and Atomic Workers International Union v. Imperial Oil Ltd., [1963] S.C.R. 584. Moreover, it does not sit well with a leading decision by the Ontario Court of Appeal in an analogous case, Re C.F.R.B. and Attorney‑General for Canada, [1973] 3 O.R. 819, where it was held that federal jurisdiction over broadcasting supported a federal law regulating radio advertising during both federal and provincial elections. McKay is also out of step with the doctrinal path marked out by this Court in such cases as Attorney General of Quebec v. Kellogg's Co. of Canada, supra, and Construction Montcalm Inc. v. Minimum Wage Commission, supra. I would overrule McKay. Accordingly, the appellants' strong reliance on McKay does not bear fruit.
37. 2. Overbreadth
38. The appellants also argued that the prohibitions were overbroad for two reasons. First, they apply to all civil servants, or in some instances to all Crown employees, without distinguishing between the types of jobs employees perform. Second, they cover too wide a range of political activities. During argument, counsel was asked whether he could cite any case in which the overbreadth or overreach argument had been given effect in a distribution of powers situation. The answer was in the negative. In my view, overreach in the sense here used is simply not arguable in a distribution of powers case. It might be noted in passing that the judgment of the Ontario Court of Appeal is silent on the overreach point although it was apparently argued in that Court.
V
The Fraser Argument
39. At paragraph 75 of their factum, the appellants argued that:
...Canadian constitutional jurisprudence recognizes the existence of certain fundamental political rights and freedoms in the citizens of this country to participate in federal political activities. No province has the power to reduce or to derogate from these rights and freedoms.
This is the entire written argument of the appellants on this point, which is not surprising because the appellants had expected to make their civil liberties arguments in a Charter context. Once the Court decided, at the beginning of the oral hearing, not to hear Charter arguments, the appellants were forced to ground their civil liberties submission in an alternative approach.
40. In oral argument, primary reliance was placed upon a passage from this Court's unanimous judgment in Fraser, at pp. 462‑63:
..."freedom of speech" is a deep‑rooted value in our democratic system of government. It is a principle of our common law constitution inherited from the United Kingdom by virtue of the preamble to the Constitution Act, 1867 .
This principle was recently reaffirmed in RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, where McIntyre J., speaking for a unanimous Court, held at p. 584:
Prior to the adoption of the Charter , freedom of speech and expression had been recognized as an essential feature of Canadian parliamentary democracy. Indeed, this Court may be said to have given it constitutional status.
Both of these passages manifest a clear recognition that freedom of speech and expression is a fundamental animating value in the Canadian constitutional system.
41. It must not be forgotten, however, that no single value, no matter how exalted, can bear the full burden of upholding a democratic system of government. Underlying our constitutional system are a number of important values, all of which help to guarantee our liberties, but in ways which may sometimes conflict. It is for that reason that the passage in Fraser upon which the appellants rely so heavily is followed immediately by these words, at p. 463:
But [freedom of speech] is not an absolute value. Probably no values are absolute. All important values must be qualified, and balanced against, other important, and often competing, values. This process of definition, qualification and balancing is as much required with respect to the value of "freedom of speech" as it is for other values.
42. The Fraser case, which of course raised issues similar to those in the present appeal, stands for the proposition then, that the freedom of expression of public servants is a fundamental value but that certain reasonable abridgements, motivated by other competing values, may validly be authorized by a legislature. The relevant considerations in evaluating the reasonableness of the limitations are set out in Fraser.
43. It would not be appropriate to enter into a detailed application of the Fraser principles to the facts of the present case because none of the individual appellants has actually been subjected to disciplinary proceedings. As the respondent and interveners have pointed out, in determining the proper scope of application of the restrictions on political activity contained in The Public Service Act, the relevant decision makers, and in particular any grievance arbitrator, must interpret the scope of the Act in light of the principles set out in Fraser. For example, Fraser establishes that the scope of the restrictions in the Act must be considered in relation to the position and public visibility of the civil servant against whom the restrictions are said to apply.
44. In sum, it has been determined that The Public Service Act in its entirety is a valid exercise of provincial legislative jurisdiction. Furthermore, the Act must be interpreted in light of Fraser. I would add only that nothing I have said should be taken to predetermine the relevant analysis in any potential challenge to the Act launched under the Canadian Charter of Rights and Freedoms .
VI
Conclusion
45. The appeal should be dismissed. The first constitutional question should be answered as follows: Sections 12, 13, 14, 15 and 16 of The Public Service Act, R.S.O. 1970, c. 386, as amended, are constitutional in so far as they purport to restrain provincial civil servants and Crown employees from engaging in certain federal political activity. The second and third constitutional questions are not answered.
46. I would not award costs.
The judgment of Beetz, McIntyre, Le Dain and La Forest JJ. was delivered by
47. Beetz J.‑‑The issue has been stated by Laskin C.J. in the following constitutional question:
Are ss. 12, 13, 14, 15 and 16 of The Public Service Act, R.S.O. 1970, c. 386 as amended, unconstitutional insofar as they purport to restrain provincial Civil Servants and Crown Employees from engaging in certain federal political activity?
I
The Facts
48. The facts have been described in an agreed statement of facts, a summary of which appears in appellants' factum:
The appellant Ontario Public Service Employees Union is the bargaining agent for approximately 50,000 employees of the government of Ontario, who are subject to the Ontario Public Service Act.
The Appellant Marie Wilkinson is employed by the Ontario Ministry of Community and Social Services as a counsellor at a centre for the care of the mentally retarded in Blenheim, Ontario. The Appellant Edward E. Faulknor is employed by the Ministry of Revenue (Ontario) as an Assessor in Hamilton‑Wentworth Office. The Appellant Russell B. Smith is employed as a lab technician by the Ministry of Natural Resources.
Each of the individual Appellants is a Crown employee, a civil servant and a member of an appellant union.
Each of the individual Appellants wishes to engage in political activities currently prohibited by the Public Service Act, including running for election to Parliament, canvassing and soliciting funds on behalf of political parties, and expressing opinions on political issues.
For purposes of this Appeal, the organization and philosophy of the various political parties both federally and provincially are agreed to be the same.
49. The political activities in which the individual appellants wished to engage were in connection with the 1979 federal elections. The individual appellants became concerned that the pursuit of such activities would subject them to disciplinary measures pursuant to The Public Service Act. By an originating notice of motion, they, together with their union, applied to the Supreme Court of Ontario for an order declaring unconstitutional ss. 12, 13, 14, 15 and 16 of The Public Service Act, hereinafter referred to as the Act.
II
The Legislation
50. The impugned sections of the Act provide as follows:
12.‑‑(1) Except during a leave of absence granted under subsection 2, a Crown employee shall not,
(a) be a candidate in a provincial or federal election or serve as an elected representative in the legislature of any province or in the Parliament of Canada;
(b) solicit funds for a provincial or federal political party or candidate; or
(c) associate his position in the service of the Crown with any political activity.
(2) Any Crown employee, other than a deputy minister or any other Crown employee in a position or classification designated in the regulations under clause u of subsection l of section 29, who proposes to become a candidate in a provincial or federal election shall apply through his minister to the Lieutenant Governor in Council for leave of absence without pay for a period,
(a) not longer than that commencing on the day on which the writ for the election is issued and ending on polling day; and
(b) not shorter than that commencing on the day provided by statute for the nomination of candidates and ending on polling day,
and every such application shall be granted.
(3) Where a Crown employee who is a candidate in a provincial or federal election is elected, he shall forthwith resign his position as a Crown employee.
(4) Where a Crown employee who has resigned under subsection 3,
(a) ceases to be an elected political representative within five years of the resignation; and
(b) applies for reappointment to his former position or to another position in the service of the Crown for which he is qualified within three months of ceasing to be an elected political representative,
he shall be reappointed to the position upon its next becoming vacant.
(5) Where a Crown employee has been granted leave of absence under subsection 2 and was not elected, or resigned his position under subsection 3 and was reappointed under subsection 4, the period of the leave of absence or resignation shall not be computed in determining the length of his service for any purpose, and the service before and after such period shall be deemed to be continuous for all purposes.
13.‑‑(1) A civil servant shall not during a provincial or federal election canvass on behalf of a candidate in the election.
(2) Notwithstanding subsection 1, a deputy minister or any other Crown employee in a position or classification designated in the regulations under clause u of subsection 1 of section 29 shall not at any time canvass on behalf of or otherwise actively work in support of a provincial or federal political party or candidate.
14. Except during a leave of absence granted under subsection 2 of section 12, a civil servant shall not at any time speak in public or express views in writing for distribution to the public on any matter that forms part of the platform of a provincial or federal political party.
15. A Crown employee shall not during working hours engage in any activity for or on behalf of a provincial or federal political party.
16. A contravention of section 11, 12, 13, 14 or 15 shall be deemed to be sufficient cause for dismissal.
51. Civil servants and Crown employees are defined in s. 1(a) and (e) of the Act:
1. ...
(a) "civil servant" means a person appointed to the service of the Crown by the Lieutenant Governor in Council on the certificate of the Commission or by the Commission, and "civil service" has a corresponding meaning;
...
(e) "Crown employee" means a person employed in the service of the Crown or any agency of the Crown, but does not include an employee of Ontario Hydro or the Ontario Northland Transportation Commission;
III
Procedural History and Judgments of the Courts Below
52. The case was heard and decided by the Supreme Court of Ontario (1979), 24 O.R. (2d) 324, 98 D.L.R. (3d) 168, and the Ontario Court of Appeal (1980), 31 O.R. (2d) 321, 118 D.L.R. (3d) 661, before the Canadian Charter of Rights and Freedoms came into force and it proceeded on grounds related to the distribution of powers between Parliament and the legislatures.
53. The main challenge to the impugned provisions was that they allegedly relate to federal elections, a field reserved to the exclusive legislative competence of Parliament. It was alternatively submitted that even if the impugned provisions are otherwise valid as relating to a provincial object, they cannot constitutionally be construed so as to extend to or embrace the core of a federal matter such as federal elections.
54. The Attorney General for Ontario took the position that the impugned provisions were entirely authorized by s. 92(1) , (4) and (13) of the Constitution Act, 1867 :
92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next herein‑after enumerated; that is to say,‑‑
1. The Amendment from Time to Time, notwithstanding anything in this Act, of the Constitution of the Province, except as regards the Office of Lieutenant Governor.
...
4. The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers.
...
13. Property and Civil Rights in the Province.
55. In his oral reasons, Labrosse J., who heard and dismissed the application, said he did not reject the submission based on s. 92(1) and (4) but that he found the argument based on s. 92(13) much more persuasive. He said:
The Public Service Act provides for the general regulation of the hiring, dismissal and terms and conditions of employment of the civil service. The Act is really employer‑employee legislation.
56. And he held:
The impugned legislation is in pith and substance labour legislation in relation to conditions of employment to preserve the impartiality of the civil service and therefore constitute property and civil rights in the Province.
57. Labrosse J. further held, quoting Henry J. in Re United Glass & Ceramic Workers of North America and Domglas Ltd. (1978), 19 O.R. (2d) 353, at p. 362, that in so far as the impugned provisions affected the political activities of civil servants in federal elections, they did so "incidentally, as part of a wider legislative scheme to promote labour relations, a valid provincial object".
58. The Ontario Court of Appeal unanimously affirmed the judgment of Labrosse J. as well as its rationale.
59. The lamented MacKinnon A.C.J.O., speaking for himself and for Wilson and Goodman JJ.A., reviewed the principles relating to the political impartiality of the public service and underlined their vital relationship to a system of responsible government in Canada. He wrote at p. 330 (O.R.):
If one accepts that the political neutrality or impartiality of Crown servants is a necessary and fundamental doctrine of the Canadian Constitution, adopted from the Constitution of the United Kingdom, there is considerable force in the argument that the legislation here attacked, inasmuch as it simply gives legislative effect to an existing convention, is competent under ss. 92(1) and 92(4) of the B.N.A. Act.
However, in answering what Mr. Justice Labrosse described as the real issue, namely whether it is within the competence of the Province to restrict Crown employees and civil servants in federal political activities, I would prefer to rest that answer as he did, on the effect to be given here to s. 92(13) of the B.N.A. Act. There is no question but that, under that head of legislative power, the Provinces have jurisdiction over labour relations in the Province.
60. MacKinnon A.C.J.O. added at p. 331:
The people of Ontario also have a special interest in the impartiality of its civil service. It can be said, accordingly, that, as well as being legislation with relation to labour relations in the Province, the legislation in question, viewed from another perspective, is also legislation designed to protect the civil rights of Ontario residents generally to have an impartial civil service.
61. The appeal was accordingly dismissed.
62. Leave to appeal was granted by this Court on March 2, 1981.
63. The following are constitutional questions as stated by Laskin C.J. and as revised and supplemented by Dickson C.J.:
1. Are ss. 12, 13, 14, 15 and 16 of The Public Service Act, R.S.O. 1970, c. 386 as amended, unconstitutional insofar as they purport to restrain provincial Civil Servants and Crown Employees from engaging in certain federal political activity?
2. Do ss. 12, 13, 14, 15 and 16 of The Public Service Act, R.S.O. 1970, c. 386 as amended, infringe or deny the rights and freedoms guaranteed by ss. 2, 3 and/or 15(1) of the Canadian Charter of Rights and Freedoms insofar as they purport to restrain provincial Civil Servants and Crown Employees from engaging in certain federal and provincial political activity?
3. If ss. 12, 13, 14, 15 and 16 of The Public Service Act, R.S.O. 1970, c. 386 as amended, infringe or deny ss. 2 and 3, and/or 15(1) of the Canadian Charter of Rights and Freedoms , are these sections justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982 ?
64. At the start of the hearing before this Court, the Attorney General for Ontario, supported by several intervening Attorneys General, contended that the Court should not entertain the Charter issues because all the political activities in question were pre‑Charter and neither of the Courts below had heard Charter submissions. After argument, the Court decided (Dickson C.J. and Chouinard and Le Dain JJ. dissenting) that the Court would not hear or decide the Charter issues.
65. The case then proceeded on written and oral submissions based upon the distribution of legislative powers and on oral submissions based upon a fundamental rights and freedoms argument derived from certain statements in Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455.
66. It should also be noted that s. 92(1) of the Constitution Act, 1867 has now been replaced by s. 45 of the Constitution Act, 1982 , as qualified by the other provisions of Part V of the latter Act, entitled "Procedure for amending Constitution of Canada". However, the impugned provisions antedate the coming into force of this procedure; their constitutional validity will accordingly be examined in the light of the law in force at the time of their enactment. It may well be thought that the coming into force of the amending procedure has not altered the power of the province to amend its own constitution but I refrain from expressing any view on the matter.
IV
The Distribution of Powers
67. The submissions made to us by the appellants and the respondent with respect to the distribution of powers were, with some amplification, essentially the same as those presented to the Courts below. They are set out above in summary form.
68. All the intervening Attorneys General spoke in support of the conclusions sought by the Attorney General for Ontario.
69. I should state at the outset that I reach the same conclusions as the Courts below. But I reach them for different reasons.
70. In my respectful opinion, the impugned provisions are not related to the field of federal elections, as is submitted by the appellants. But neither can they be constitutionally justified on the basis, or at least on the sole basis, that they are in pith and substance labour relations legislation and therefore a matter of property and civil rights in the province. I am rather of the view that the impugned provisions are an amendment of the constitution of the province and that they are also related to the tenure of provincial offices.
1. Property and Civil Rights in the Province
71. I begin by saying why I have difficulty in agreeing with the characterization given by the Courts below to the Act as a whole as well as to its impugned provisions.
72. I start with the proposition advanced by the Court of Appeal that the legislation in question can be viewed as "designed to protect the civil rights of Ontario residents generally to have an impartial civil service". It seems to me that in so far as this legislation can be said to confer rights, individual or collective, upon the Ontario residents to have an impartial civil service, such rights are not civil but rather public or political rights. To quote Professor Hogg, in Constitutional Law of Canada (2nd ed. 1985), at p. 454, these rights do not form part of the
...body of private law which governs the relationships between subject and subject, as opposed to the law which governs the relationships between the subject and the institutions of government.
73. For much the same reasons, I find it difficult to regard the Act simply as "employer‑employee" legislation.
74. Many of the public servants mostly affected by the impugned provisions are more than mere employees of the Crown. They include all deputy ministers, and, under the regulations referred to in s. 12(2) of the Act, they comprise, for instance, for each ministry including agencies, boards and commissions, public servants such as the assistant deputy minister, the executive director, the executive secretary, the general manager, the branch director as well as full‑time heads and full‑time members of boards, agencies and commissions. In the Ministry of the Attorney General, to take another example, they comprise positions and classifications such as the following ones: court administrator, crown attorney of Toronto and York, crown law officers 1, 2 and 3, judges of the Small Claims Court, justices of the peace, the local master of the Supreme Court of Ontario, provincial judges, the registrar of boards and commissions, the registrar of the Supreme Court of Ontario. To repeat, these are not mere employees. They are the holders of public office and many of them exercise important powers given to them by law.
75. The Act accordingly provides, in s. 10, that every civil servant shall subscribe an oath of office and secrecy as well as an oath of allegiance to the sovereign, and that any person or class of persons appointed to the unclassified civil service may be required to subscribe either or both the oaths. The oath of office comprises an undertaking to observe and comply with the laws of Canada and Ontario, which include the impugned provisions and it goes without saying that the subscribing of this oath is not negotiable. A provision of this type is unexpected, to say the least, in an employer‑employee legislation or in an act regulating labour relations, but is very much in order in a law relating to the constitution of the province and to the tenure of provincial offices.
76. I realize that the number of public servants who fall into the above‑described categories constitutes but a minority of the public service. However they are more affected than others by the impugned provisions since they cannot be given a leave of absence to carry on political activity; and it seems to me that they cannot be governed by those provisions except under the constitutional authority of some head of power other than property and civil rights.
77. As for civil servants who do not exercise powers but whose functions are simply advisory, professional or even clerical, they nevertheless hold an office, since they must subscribe what the Act labels an oath of office. They are not merely hired by the Crown but appointed to the service of the Crown by the Lieutenant‑Governor in Council on the certificate of the Civil Service Commission and, under the Act, they are given a special and, in my view, a public status which extends beyond the limits of civil rights.
78. There remains the category of Crown employees who are not included in the classified service. Their relationship with the Crown may well be governed by the law of contract, whether it be on an individual or on a collective basis, but the obligation to comply with the impugned provisions is not negotiable for them either and does not flow from their contract of employment. It is derived from the Act, a public law of Ontario which imposes this obligation upon them because they are employed in the service of the state.
79. We are not called upon to characterize the Act as a whole, as opposed to the impugned provisions. Yet it is worth observing that the only sections of the Act which can be considered as straight labour relations provisions are ss. 27, 28 and 28a which regulate the collective bargaining of the Ontario Provincial Police Force, a special case. The rest of the Act, a relatively short act comprising 32 sections, contains provisions several of which are not related directly or not related at all to labour relations. Thus, s. 1 is a definition section. Sections 2 and 3 provide for the composition and responsibility of the Civil Service Commission. I have already referred to s. 10 relating to oaths of office, secrecy and allegiance. Section 11 allows political activities in municipal elections at certain conditions, and provided that candidacies, services and activities be not affiliated with or sponsored by provincial or federal political parties. Sections 11, 12, 13, 14, 15 and 16 are the impugned provisions. Sections 23 and 24 provide for delegation of powers by deputy ministers and the Commission. I have already referred also to ss. 26, 27, 28 and 28a which relate to the labour relations of the Ontario Provincial Police Force. Finally, s. 29 confers broad regulatory powers to the Commission, subject to the approval of the Lieutenant‑Governor in Council. The objects of these regulations comprise classifications for positions including salaries except classifications in which salaries are determined through bargaining pursuant to The Crown Employees Collective Bargaining Act, 1972, S.O. 1972, c. 67, defining overtime work, and the regulation of conduct of public servants, including the imposition of fines, removal from employment and demotion, and the designation of positions or classifications for the purpose of s. 11. Subsection 29(3) provides that a collective agreement prevails where it conflicts with a regulation.
80. Thus, the Act does contain some elements relating to labour relations, but they are not its chief characteristics as they are for instance in The Crown Employees Collective Bargaining Act, 1972.
81. While it can be said also that the Act provides for the general regulation of the hiring, dismissal and terms and conditions of employment of the provincial public service, many of its provisions, including the impugned provisions, can only be explained and justified by the fact that the employment in question is public employment. That is why they cannot in my opinion be grounded, or be grounded only in s. 92(13) of the Constitution Act, 1867 . But they can be fully grounded in s. 92(1) and (4).
2. The Amendment of the Constitution of the Province
82. Section 92(1) of the Constitution Act, 1867 provides for the process whereby the constitution of the province can be amended. This process is an ordinary law or statute of the provincial legislature. But the Constitution Act, 1867 nowhere defines the expression "constitution of the province".
83. The constitution of Ontario, like that of the other provinces and that of the United Kingdom, but unlike that of many states, is not to be found in a comprehensive, written instrument called a constitution. It is partly contained in a variety of statutory provisions. Some of these provisions have been enacted by the Parliament at Westminster, such as ss. 58 to 70 and ss. 82 to 87 of the Constitution Act, 1867 . Other provisions relating to the constitution of Ontario have been enacted by ordinary statutes of the Legislature of Ontario, for instance The Legislative Assembly Act, R.S.O. 1970, c. 240; The Representation Act, R.S.O. 1970, c. 413, and The Executive Council Act, R.S.O. 1970, c. 153.
84. Another part of the constitution of Ontario consists of the rules of the common law, developed or recognized over the years by the courts. Many of these common law rules concern the royal prerogative. For instance, they have put the Crown in right of the province in a preferred position as a creditor (Maritime Bank of Canada (Liquidators of) v. Receiver‑General of New Brunswick, [1892] App. Cas. 437) and with respect to the inheritance of lands for defect of heirs (Attorney‑General of Ontario v. Mercer (1883), 8 App. Cas. 767).
85. As was explained in Re: Resolution to amend the Constitution, [1981] 1 S.C.R. 753, at pp. 876‑78, with respect to the Constitution of Canada‑‑but the same can generally be said of the constitution of Ontario‑‑"those parts which are composed of statutory rules and common law rules are generically referred to as the law of the constitution". In addition, the constitution of Ontario comprises rules of a different nature but of great importance called conventions of the constitution. The most fundamental of these is probably the principle of responsible government which is largely unwritten, although it is implicitly referred to in the preamble of the Constitution Act, 1867 , and one of its facets is articulated in s. 83 of this Act‑‑possibly spent‑‑which, in Ontario and Quebec, "Until the Legislature of Ontario or of Quebec otherwise provides", puts a restriction on the election of holders of offices other than ministerial offices.
86. If Ontario were a unitary state, like the United Kingdom, the question whether a given enactment forms part of its constitution or amends its constitution could be resolved in the affirmative by only one relatively simple test: is the enactment constitutional in nature? In other words, is the enactment in question, by its object, relative to a branch of the government of Ontario or, to use the language of this Court in Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016, at p. 1024, does "it [bear] on the operation of an organ of the government of the Province"? Does it for instance determine the composition, powers, authority, privileges and duties of the legislative or of the executive branches or their members? Does it regulate the interrelationship between two or more branches? Or does it set out some principle of government? In a unitary state without a comprehensive written constitution, this test is the only one available.
87. Because Ontario, following the British model, is without a comprehensive written constitution, its laws do not qualify as constitutional laws unless they also satisfy first the test as to whether they are constitutional in nature.
88. This first test, however, even if prima facie satisfied, is not determinative of the issue whether an Ontario statute forms part of the constitution of Ontario or is an amendment of the constitution of Ontario, within the meaning of s. 92(1) of the Constitution Act, 1867 . The main reason for the insufficiency of the first test is that Ontario is not a unitary state. It is an integral part of a federal one and provisions relating to the constitution of the federal state, considered as a whole, or essential to the implementation of the federal principle, are beyond the reach of the amending power bestowed upon the province by s. 92(1). An obvious example is the whole of s. 92 itself. With respect to Ontario, it is in a sense constitutional in nature in so far as it defines the legislative competence of the legislature of this province. But it also sets limits to the legislative competence of Parliament. It lies at the core of the scheme under which legislative competence is distributed in the federation. It forms part of the constitution of the federation considered as a whole rather than of the constitution of Ontario, within the meaning of s. 92(1) of the Constitution Act, 1867 . Prior to 1982, that part of the constitution of the federation was therefore entrenched in the sense that it could only be amended by the Parliament at Westminster, in accordance with constitutional conventions.
89. Furthermore, other provisions of the Constitution Act, 1867 could be similarly entrenched and held to be beyond the reach of s. 92(1), not because they were essential to the implementation of the federal principle, but because, for historical reasons, they constituted a fundamental term or condition of the union formed in 1867. Thus, s. 133 of the Constitution Act, 1867 was held in Blaikie, supra, to constitute such a provision and to be a "part of the Constitution of Canada and of Quebec in an indivisible sense" and not a part of the constitution of Quebec within s. 92(1).
90. To sum up, therefore, and subject to the caveat I will mention later, an enactment can generally be considered as an amendment of the constitution of a province when it bears on the operation of an organ of the government of the province, provided it is not otherwise entrenched as being indivisibly related to the implementation of the federal principle or to a fundamental term or condition of the union, and provided of course it is not explicitly or implicitly excepted from the amending power bestowed upon the province by s. 92(1), such as the office of Lieutenant‑Governor and, presumably and a fortiori, the office of the Queen who is represented by the Lieutenant‑Governor.
91. The above‑described approach seems to me to be consistent with the line followed by this Court in Blaikie, supra, where it explicitly declined to adopt a narrower line. It had been held by the Appellate Division of the Alberta Supreme Court in R. v. Ulmer, [1923] 1 W.W.R. 1, 1 D.L.R. 304, and by the Quebec Court of Appeal in Procureur général du Québec c. Blaikie, [1978] C.A. 351, that s. 92(1) of the Constitution Act, 1867 should be given a restricted meaning embracing only those provisions included under the number and heading V of the Constitution Act, 1867 , entitled "Provincial Constitutions". This restrictive interpretation could not be reconciled with Fielding v. Thomas, [1896] A.C. 600, where it had been held that the privileges and immunities of members of the Nova Scotia Legislative Assembly, and legislation giving immunity from civil liability in respect of words and conduct in the Assembly, were matters coming within s. 92(1). These matters could not conceivably be included under heading V of the Constitution Act, 1867 . In Blaikie, supra, this Court had this to say about the question at pp. 1024‑25:
The fact that Fielding v. Thomas concerned matters relating to the Constitution of the Province, in the sense that it bore on the operation of an organ of the government of the Province, does not help to establish the appellant's position as to the unlimited scope of s. 92(1). The latter may, of course, cover such changes as were dealt with in Fielding v. Thomas and, also, other matters not expressly covered by the British North America Act but implicit in the Constitution of the Province. That does not, however, carry the necessary conclusion that s. 133 is unilaterally amendable. Indeed, the argument goes too far because, as pressed, it would permit amendment of the catalogue of legislative powers in the succeeding catalogue of classes of subjects in s. 92 and this was not suggested. [Emphasis added.]
92. We must now apply these tests to the provisions impugned in the case at bar.
93. It is clear to me that those provisions are constitutional in nature in the sense that they bear on the operation of an organ of government in Ontario and that they impose duties on the members of a branch of government in order to implement a principle of government. The organ of government is the Ontario Public Service. The duty is the one imposed upon the members of the public service to abstain from the political activities contemplated by the impugned provisions. The principle of government is the impartiality of the public service considered as an essential prerequisite of responsible government.
94. In Fraser, supra, Dickson C.J., speaking for the full Court, stressed "the importance and necessity of an impartial and effective public service" at p. 469. He then continued as follows on the same page and on pp. 469‑70:
There is in Canada a separation of powers among the three branches of government‑‑the legislature, the executive and the judiciary. In broad terms, the role of the judiciary is, of course, to interpret and apply the law; the role of the legislature is to decide upon and enunciate policy; the role of the executive is to administer and implement that policy.
The federal public service in Canada is part of the executive branch of Government. As such, its fundamental task is to administer and implement policy. In order to do this well, the public service must employ people with certain important characteristics. Knowledge is one, fairness another, integrity a third.
As the Adjudicator indicated, a further characteristic is loyalty. As a general rule, federal public servants should be loyal to their employer, the Government of Canada. The loyalty owed is to the Government of Canada, not the political party in power at any one time. A public servant need not vote for the governing party. Nor need he or she publicly espouse its policies. [The underlining is mine.]
95. It can similarly be said that the public service in Ontario is a part of the executive branch of the government of Ontario. The ministers and the executive council of Ontario would be powerless and quite incapable of administering the province if they were deprived of the public service and left to their own device. The government of a large modern state is impossible to manage without a relatively large public service which effectively participates in the exercise of political power under the supervision of responsible ministers:
[TRANSLATION] However, while a public servant always remains a citizen he is also a servant of the State. As the holder of a small part of governmental authority and possessor of exceptional prerogatives at common law, the public servant shares in the exercise of power. This is indeed the reason that the State imposes a duty of loyalty and silence on him. Would not allowing public servants to exercise their political freedoms to the fullest risk compromising the action, even the very existence, of established governments, paralyze political control and weaken the confidence of individuals in government, if the public servant were to fail to demonstrate the impartiality of the government?
(Patrice Garant, La fonction publique canadienne et québécoise (Québec 1973), at pp. 347‑48.)
96. So much for the branch of government which is regulated by the impugned provisions. As for the principles of government which they purport to fulfil, I think that much of what the Ontario Court of Appeal had to say on the matter in the case at bar is apposite. MacKinnon A.C.J.O. wrote:
In Vol. II, Part 2, of Law and Custom of the Constitution (1908), Anson wrote at p. 69 that a principal feature of responsible government in colonial Canada was "the permanent tenure of office by the civil servant, and his exclusion from the Legislature". It was clearly the intention of those who framed the British North America Act, 1867, that responsible government should continue in Canada when they stated in the preamble to that Act that Canada was to have "a Constitution similar in Principle to that of the United Kingdom".
...
The history of the development of the Legislature's control over the civil service and the gradual emancipation of civil service appointment from political patronage is of importance in determining what conventions existed in this connection at the time of Confederation. It helps determine what was imported into Canada in this regard by the words "a Constitution similar in Principle to that of the United Kingdom".
In 1914 the MacDonnell Commission in the United Kingdom, in its report, pointed out that, as part of responsible government, it was necessary to impose upon civil servants some restraint on partisan political activities; this in turn would ensure and promote efficiency of public administration by civil servants. This view was adopted in 1949 by the Masterman Committee in its report on "The Political Activities of Civil Servants".
97. MacKinnon A.C.J.O. then quoted a passage of the MacDonnell Committee Report including the following one which was also quoted later by Dickson C.J. in Fraser, supra, at p. 471:
Speaking generally, we think that if restrictions on the political activities of public servants were withdrawn two results would probably follow. The public might cease to believe, as we think they do now with reason believe, in the impartiality of the permanent Civil Service; and Ministers might cease to feel the well‑merited confidence which they possess at present in the loyal and faithful support of their official subordinates; indeed they might be led to scrutinise the utterances or writings of such subordinates, and to select for positions of confidence only those whose sentiments were known to be in political sympathy with their own.
If this were so, the system of recruitment by open competition would provide but a frail barrier against Ministerial patronage in all but the earlier years of service; the Civil Service would cease to be in fact an impartial, non‑political body, capable of loyal service to all Ministers and parties alike; the change would soon affect the public estimation of the Service, and the result would be destructive of what undoubtedly is at present one of the greatest advantages of our administrative system, and one of the most honourable traditions of our public life.
98. MacKinnon A.C.J.O. continued:
The Masterman Committee, in its summary of conclusions, stated that "the political neutrality of the Civil Service is a fundamental feature of British democratic government and is essential for its efficient operation. It must be maintained even at the cost of some loss of political liberty by certain of those who elect to enter the Service". A subsequent committee on the subject in the United Kingdom (the Armitage Committee) reported in the same fashion in 1978.
99. MacKinnon A.C.J.O. then proceeded to make findings which in my view are as crucial as they are unassailable:
Clearly there was a convention of political neutrality of Crown servants at the time of Confederation and the reasoning in support of such convention has been consistent throughout the subsequent years. Whether it was honoured fully at that time in practice is irrelevant. The consideration is, as stated earlier, not as to the social desirability of the legislation but rather the fact that historically there was such a convention existing in 1867. It is difficult to take exception to Mr. Justice Labrosse's conclusion that: "Public confidence in the civil service requires its political neutrality and impartial service to whichever political party is in power" (p. 173 O.R., p. 328 D.L.R.). The impugned provisions seem to do no more than reflect the existing convention.
100. I agree with these findings. I would however express the last one in more positive terms: to me, the impugned provisions do not merely seem to reflect the existing convention; they clearly give it the additional force and precision of legislative effect, and they are constitutional provisions by nature and prima facie competent under s. 92(1) of the Constitution Act, 1867 .
101. I do not think that this prima facie conclusion can be altered by the negative parts of the above‑described tests.
102. Far from violating a fundamental term or condition of the union as was the case in Blaikie, supra, the impugned provisions give additional legislative effect to one of its basic tenets, the principle of responsible government. In this respect, the impugned provisions bear a closer relationship to those of the federal Official Languages Act, R.S.C. 1970, c. O‑2, found constitutionally valid by this Court in Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182.
103. I do not think either that the rules introduced by the impugned provisions can be said to be incompatible with the implementation of the federal principle.
104. I understand that, according to the appellants' first submission, the impugned provisions are related to the exclusively federal subject of federal elections (Valin v. Langlois (1879), 3 S.C.R. 1, 5 A.C. 115), and that, according to their alternative submission, even if the impugned provisions are related to a provincial object, they cannot constitutionally extend to the federal subject of federal elections.
105. I doubt that either of these submissions reaches the level of the federal principle argument. But, be that as it may, I agree with neither of these submissions. I will deal with the second and alternative submissions in a separate chapter.
106. As for the first submission, I take the view that it should be dismissed for the following reasons. The impugned provisions constitute properly framed legislation which in no way affects the validity of federal elections or eligibility to the House of Commons, or qualifications or disqualifications to sit in this House; nor do they make the political activities which they contemplate unlawful; what they do is to create a disability from membership in the Ontario Public Service, thereby affecting a provincially created relationship; the impugned provisions are not aimed specifically at federal political activity; they are comprehensively aimed at regulating the political activities of Ontario public servants as such, that is as members of the executive branch of government, in order to safeguard their neutrality and impartiality. With all due respect, I can find no merits in the appellants' first submission.
107. In my opinion, the impugned provisions constitute an ordinary legislative amendment of the constitution of Ontario, within the meaning of s. 92(1) of the Constitution Act, 1867 .
108. However, let me say one word of caution before I conclude this chapter. The fact that a province can validly give legislative effect to a prerequisite condition of responsible government does not necessarily mean it can do anything it pleases with the principle of responsible government itself. Thus, it is uncertain, to say the least, that a province could touch upon the power of the Lieutenant‑Governor to dissolve the legislature, or his power to appoint and dismiss ministers, without unconstitutionally touching his office itself. It may very well be that the principle of responsible government could, to the extent that it depends on those important royal powers, be entrenched to a substantial extent.
109. But there may be more to it.
110. In In re Initiative and Referendum Act, [1919] A.C. 935, the Judicial Committee invalidated legislative provisions which empowered the electors of Manitoba to legislate directly by way of a referendum procedure. The Judicial Committee found the legislation in question invalid on somewhat narrow grounds related to the office of Lieutenant‑Governor. The Judicial Committee was undoubtedly conscious of the fact that the technical flaws it found in the legislation could easily be corrected without any effect on the major feature of the legislation. Viscount Haldane, who delivered the reasons of the Judicial Committee, accordingly pronounced a deliberate and important obiter at p. 945, reading as follows:
No doubt a body, with a power of legislation on the subjects entrusted to it so ample as that enjoyed by a Provincial Legislature in Canada, could, while preserving its own capacity intact, seek the assistance of subordinate agencies, as had been done when in Hodge v. The Queen [9 App. Cas. 117], the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating to taverns; but it does not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence. Their Lordships do no more than draw attention to the gravity of the constitutional questions which thus arise.
111. While this obiter is confined to the particular facts of that case, it may stand for the wider proposition that the power of constitutional amendment given to the provinces by s. 92(1) of the Constitution Act, 1867 does not necessarily comprise the power to bring about a profound constitutional upheaval by the introduction of political institutions foreign to and incompatible with the Canadian system.
3. The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers
112. Section 92(4) of the Constitution Act, 1867 empowers the province to make laws in relation to "The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers". Parliament has been given a corresponding albeit differently described power by s. 91(8) relating to "The fixing of and providing for the Salaries and Allowances of Civil and other Officers of the Government of Canada".
113. Neither of these provisions seems to have been the object of much comment, doctrinal or judicial.
114. In the second edition of The Law of the Canadian Constitution (1904), at p. 261, Clement writes that the item covered by s. 92(4) "is the guarantee for the continuance of `responsible government.'" In Attorney‑General for Canada v. Attorney‑General for Ontario, [1898] A.C. 247, the Judicial Committee implicitly overruling Lenoir v. Ritchie (1879), 3 S.C.R. 575, relied upon s. 92(4), in combination with s. 92(1) and (14), to find intra vires an Ontario statute empowering the Lieutenant‑Governor to confer precedence by patents upon such members of the bar of the province as he thinks fit to select.
115. However, what matters much more than the paucity of comment is the fact that the powers bestowed upon Parliament and the legislature by ss. 91(8) and 92(4) of the Constitution Act, 1867 have been exercised on a large scale without challenge ever since 1867. The lack of challenge does not mean that these powers are either axiomatic or unimportant. If the federal level of government were made entirely dependent upon provincial instrumentalities by the Constitution, Canada would run the risk of becoming but a loose and precarious confederacy. On the other hand, it might become a highly centralized state if the converse situation were to prevail. Furthermore, the rules of responsible government might become hopelessly blurred in such hypothetical cases. Sections 91(8) and 92(4) of the Constitution Act, 1867 thus constitute provisions of fundamental importance, essential to the federal principle and to responsible government.
116. The impugned provisions are aimed at federal as well as provincial political activities and constitute a term or condition of tenure of provincial office, enforced by compulsory resignation or dismissal. Their object is to ensure in this respect, not partial virtue, but global political independence for provincial officers. Far from violating the federal principle, their aim is to reinforce it and to secure the operation of responsible government within a federal framework.
117. In my opinion, the constitutional validity of the impugned provisions may also be supported under s. 92(4) of the Constitution Act, 1867 which in any event buttresses the argument already made under s. 92(1).
4. The McKay Case and Other Related Matters
118. The appellants sought to support their main challenge, but more particularly their alternative challenge to the impugned provisions, by relying on several judgments of this Court, among which Reference re Minimum Wage Act of Saskatchewan, [1948] S.C.R. 248; Johannesson v. Municipality of West St. Paul, [1952] 1 S.C.R. 292; McKay v. The Queen, [1965] S.C.R. 798, and Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218.
119. I propose to discuss only the McKay case on which appellants put special reliance.
120. In McKay, the Court held that a municipal by‑law prohibiting the display of signs in a residential zone was inapplicable to federal election signs.
121. Moses and Sarah McKay had been convicted by a Justice of the Peace on a charge of unlawfully maintaining a sign on their premises, contrary to the by‑law in question, and fined $25 each. The sign was displayed by the appellants on the railing of a veranda forming part of their residence during the period of a federal election. The sign urged the people to vote for a certain candidate. The by‑law forbade all display of signs except those of a type not including the sign displayed by the appellants. The validity of the by‑law or of the enabling legislation was not raised, but it was contended by the appellants that, on its true construction, the by‑law was not intended to have the effect of forbidding the use of such a sign during the period of an election to Parliament.
122. On a stated case, the conviction was quashed by a judge of the Supreme Court of Ontario‑‑[1963] 2 O.R. 162‑‑but restored by the Court of Appeal, [1964] 1 O.R. 641.
123. This Court, by a majority of five to four, allowed the appeal and set aside the conviction.
124. Cartwright J., as he then was, delivered the reasons of the majority. He took the view that the Justice of the Peace and the Court of Appeal had given effect to the by‑law as if it specifically provided that, during an election to Parliament, no owner of property in the particular zone covered by the by‑law should display any sign soliciting votes for a candidate at such election. Such an enactment, he held, would be ultra vires of the province as being in relation to proceedings at a federal election.
125. Furthermore, Cartwright J. wrote at p. 804: "A political activity in the federal field which has theretofore been lawful can ... be prohibited only by Parliament". And, at p. 805, he went on to say that if the by‑law was construed as it had been by the Justice of the Peace and the Court of Appeal, "it does not merely affect, it destroys the right of the appellants to engage in a form of political activity in the federal field which has heretofore been possessed and exercised by electors without question". Cartwright J. accordingly concluded that the by‑law should be "read down" so that its operation be restricted to matters within the power of the enacting body, which included neither proceedings at a federal election nor the right of federal electors to engage in a lawful form of political activity.
126. Martland J. delivered the reasons of the minority. He held in essence that the by‑law was a law of general application in relation to property. It should apply to the facts of that case because, assuming it had some effect on proceedings at federal elections and on the means of propaganda used by an individual or by a political party during a federal election campaign, such effect was permissible as being incidental and in no way interfering with the working of parliamentary institutions of Canada.
127. The appellants submit that McKay is determinative of the case at bar. They contend that the two cases raise an almost identical issue, that the impugned provisions prohibit certain types of participation in federal elections and that such prohibitions are unconstitutional on the authority of McKay.
128. Both Labrosse J. and the Ontario Court of Appeal distinguished McKay from the case at bar and, respectfully, I think they were right in doing so.
129. The prohibition in McKay was an absolute one, and it was enforced with penal consequences. In his reasons for judgment in McKay, Cartwright J. repeatedly emphasized the prohibition aspect of the by‑law under consideration in that case. I should add that municipal by‑laws of the same nature are in force by the thousand in the cities and towns of Canada, a consideration which, although it was not referred to in McKay, may explain the reluctance of the majority to accept the proposition that by‑laws of this type affected the proceedings at federal elections in an incidental manner only.
130. In the case at bar, by contrast, the political activities contemplated by the impugned provisions are not made unlawful. These provisions are in the nature of detailed regulations. Failure to comply with them is a ground for dismissal. No other sanction is prescribed. The public servant who is not prepared to accept them can resign. Nor do I think that such a public servant is thereby deprived of any "right" unless it be thought that he has a right to his office. But at common law, and apart from statute, a civil servant holds office during pleasure. As was correctly put by the respondent in his factum,
The challenged provisions in effect confer rights and protect the service by making ... provisions for leaves of absence and by securing a position in the service to those who cease to hold elective office within five years.
131. Such regulations in my view are quite distinct from a blanket prohibition.
132. The distinction between prohibition and regulation is admittedly more frequently made in administrative law than in constitutional law. But I believe it is relevant in a case such as the case at bar where what has to be measured is the impact, direct or indirect, of provincial legislation upon a federal area of legislative competence. I am of the view that, whatever effect the impugned provisions may have upon the subject of federal elections and the right of federal electors to engage in political activities, it is an indirect or incidental effect; and the reason is that, far from being in the nature of a prohibition, they are in fact permissive at certain conditions which are imposed as incidents of the status of provincial public servants.
133. The McKay case can be further distinguished by the fact that s. 71 of the Canada Elections Act, S.C. 1960, c. 39, provided that "Every printed advertisement, handbill, placard, poster or dodg‑ er having reference to any election shall bear the name and address of its printer and pub‑ lisher . . . . " It had been submitted by Counsel for the appellants McKay that Parliament had thereby "occupied the field". Cartwright J. did not find it necessary to reach a definite conclusion on this submission but he said he inclined to agree with it and, at p. 805, he commented on s. 71 of the Canada Elections Act as follows:
This indicates that Parliament contemplates that persons other than candidates may post up placards and posters having reference to an election and subjects the practice to a limited form of regulation. The impugned by‑law forbids such posting up altogether on residential property, which will often be the only place on which the owner of that property has the right to post up such a placard.
134. In regulating the posting of placards and posters during a federal election, Parliament had implicitly recognized the right to do so, subject to the regulations. The by‑law under consideration in McKay deprived the appellants of that right and collided with a paramount provision of the Canada Elections Act. In the case at bar, it has not been argued that the impugned provisions were in conflict with any federal enactment.
135. It seems to me also that the provisions which are impugned in the case at bar present distinguishing features which are almost unique in that they form part of an integrated scheme of both orders of government in Canada. Under s. 32 of Public Service Employment Act, R.S.C. 1970, c. P‑32, federal civil servants are also prevented, except under certain conditions, from engaging into political activities in the provincial as well as in the federal field. And, according to the Ontario Court of Appeal, six other provinces and the two territories have enacted similar legislation. This integrated scheme, considered as a whole, is meant to protect the principle of responsible government which is common to both orders of government. To accept the appellants' submission would mean that the federal legislation is unconstitutional in so far as it is directed at political activities in the provincial field. But so to hold would be to create a constitutional gap which neither level of government would be able to fill since obviously, it is not open to Parliament to determine the terms and conditions under which provincial civil servants hold office in Ontario any more than it is open to Ontario to do the same with respect to federal civil servants. But to leave a constitutional gap impossible to fill even by the joint legislative action of both orders of government violates the principle according to which, under the Constitution Act, 1867 , the distribution of legislative competences is an exhaustive one.
136. The fallacy of the appellants' position, this being said with respect, is reflected in the following submission written in their factum:
It is submitted that control over political activity by civil servants in federal elections is not integral to the provincial objective of maintaining impartiality in the development and application of public policy in Ontario because:
(1) federal and provincial governments have different areas of jurisdiction, and federal and provincial elections raise different political issues.
137. I have a few comments to make on this submission. First, it does not make allowance for nor respond to the paragraph of the agreed statement of facts according to which the organization and philosophy of the various political parties both federally and provincially are agreed to be the same.
138. Furthermore, and quite apart from that paragraph of the agreed statement of facts, it seems to me that the submission expresses a point of view totally divorced from the facts of political life in a federation such as Canada, and from certain features of the Canadian Constitution itself.
139. Under the Constitution Act, 1867 , some legislative powers are shared by Parliament and the legislatures, as in the case of old age pensions, agriculture and immigration.
140. Other areas of constitutional competence are closely complementary. Thus the criminal law power is federal and the power over the administration of justice is provincial.
141. But even the fact that, in many areas, legislative competence is distributed in exclusive terms, does not change the nature of politics and political activity which is essentially to choose between various priorities. Should more of the public funds be spent on the armed forces, an exclusively federal field, or on education, an exclusively provincial one? Such a dilemma could arise in a federal as well as in a provincial election for there is no specific forum for it. The plain fact is that even in a federation with divided jurisdictions, the object of the political discourse, the ultimate form of political activity, remains indivisible.
142. It follows therefore that if Ontario wanted to ensure the impartiality of its public servants, it had no choice but to include political activities in the federal field in the impugned provisions. The alternative would have made it miss its target altogether. The effect of these provisions on federal political activities is not only incidental, it is necessarily incidental. V
The Fundamental Rights and Freedoms Argument
143. In their factum, the appellants made the following argument:
...Canadian constitutional jurisprudence recognizes the existence of certain fundamental political rights and freedoms in the citizens of this country to participate in federal political activities. No province has the power to reduce or to derogate from these rights and freedoms.
144. They sought to support this submission by referring inter alia to Reference re Alberta Statutes, [1938] S.C.R. 100, and Switzman v. Elbling, [1957] S.C.R. 285.
145. Their counsel then launched into an oral argument based upon certain statements made in the unanimous judgment of this Court in Fraser and more particularly upon the following passage at pp. 462‑63:
..."freedom of speech" is a deep‑rooted value in our democratic system of government. It is a principle of our common law constitution, inherited from the United Kingdom by virtue of the preamble to the Constitution Act, 1867 .
146. Counsel also referred to pp. 466‑68 of Fraser relating to the balance that has to be struck between a federal employee's freedom of expression and the government's desire to maintain an impartial public service and stating the principles which ought to guide the balancing of conflicting values, starting with the proposition that some speech by public servants concerning public issues must be permitted. In the same pages, the factors to be taken into consideration are underlined, including the growth of the public sector, the inadmissibility of a blanket prohibition which would deny fundamental democratic rights to far too many people, the relative position of individual public servant within the service and the like.
147. Counsel argued that the same kind of free speech is in issue in the Fraser case and in the case at bar and he submitted that the impugned provisions do not comply with the principles and guidelines stated in Fraser. Counsel argued more particularly that the impugned provisions are overbroad in that they apply to all civil servants, and, in some cases, to all Crown employees without any distinction between the types of jobs they perform. Furthermore, the impugned provisions cover too wide a range of political activities.
148. It can be seen that this line of argument is tantamount to one based on the Canadian Charter of Rights and Freedoms . It constitutes a valiant attempt to go to the validity of the impugned provisions without the help of the Charter . I have never heard the overbreadth argument being made in a distribution of powers case except perhaps where colourability was alleged. As for the test relating to the balancing of conflicting values, it is of course highly relevant under s. 1 of the Charter , or in a common law or administrative law context such as the Fraser case. But in a distribution of powers case, once it is demonstrated that the enacting legislature is competent, the balancing of conflicting values depends on the political judgment of such legislature and cannot be reviewed by the courts without their passing upon the wisdom of the legislation.
149. Perhaps the Fraser case might have given some ammunition to the appellants if they had been allowed to rely on the Charter . I refrain from expressing any view on this point. But one thing is certain: the Fraser case had nothing to do with the validity of legislation in a distribution of powers sense, and, in my view, it does not help the appellants.
150. Perhaps the appellants' strongest argument was the one based on the existence in Canada of certain fundamental rights to participate in certain political activities. For this argument, they relied on such cases as Reference re Alberta Statutes and Switzman v. Elbling, supra.
151. There is no doubt in my mind that the basic structure of our Constitution, as established by the Constitution Act, 1867 , contemplates the existence of certain political institutions, including freely elected legislative bodies at the federal and provincial levels. In the words of Duff C.J. in Reference re Alberta Statutes, at p. 133, "such institutions derive their efficacy from the free public discussion of affairs...." and, in those of Abbott J. in Switzman v. Elbling, at p. 328, neither a provincial legislature nor Parliament itself can "abrogate this right of discussion and debate". Speaking more generally, I hold that neither Parliament nor the provincial legislatures may enact legislation the effect of which would be to substantially interfere with the operation of this basic constitutional structure. On the whole, though, I am inclined to the view that the impugned legislation is in essence concerned with the constitution of the province and with regulating the provincial public service and affects federal and provincial elections only in an incidental way.
152. I should perhaps add that issues like the last will in the future ordinarily arise for consideration in relation to the political rights guaranteed under the Canadian Charter of Rights and Freedoms , which, of course, gives broader protection to these rights and freedoms than is called for by the structural demands of the Constitution. However, it remains true that, quite apart from Charter considerations, the legislative bodies in this country must conform to these basic structural imperatives and can in no way override them. The present legislation does not go so far as to infringe upon the essential structure of free Parliamentary institutions.
VI
Conclusion
153. I would answer the first constitutional question in the negative. I would not answer the second and third constitutional questions.
154. I would dismiss the appeal and would not award costs.
The following are the reasons delivered by
155. Lamer J.‑‑For the reasons given by Dickson C.J. and Beetz J., I agree that The Public Service Act, R.S.O. 1970, c. 386, as amended, viewed in its entirety, is authorized by s. 92(4) of the Constitution Act, 1867 . I therefore need not consider s. 92(13) or (1) of the Constitution Act, 1867 .
156. I agree with Dickson C.J. that McKay v. The Queen, [1965] S.C.R. 798, was wrongly decided.
157. As regards the other points in issue and the disposition of this case, I agree with Dickson C.J. and Beetz J.
158. Appeal dismissed; the first constitutional question is answered in the negative.
Solicitors for the appellants: Gowling & Henderson, Toronto.
Solicitor for the respondent: Attorney General for Ontario, Toronto.
Solicitor for the intervener the Attorney General of Canada: Attorney General of Canada, Ottawa.
Solicitor for the intervener the Attorney General of Quebec: Attorney General of Quebec, Ste‑Foy.
Solicitor for the intervener the Attorney General of Nova Scotia: Attorney General of Nova Scotia, Halifax.
Solicitor for the intervener the Attorney General for New Brunswick: Attorney General for New Brunswick, Fredericton.
Solicitor for the intervener the Attorney General of British Columbia: Attorney General of British Columbia, Victoria.
Solicitor for the intervener the Attorney General for Saskatchewan: James B. Taylor, Regina.
Solicitor for the intervener the Attorney General for Alberta: Attorney General for Alberta, Edmonton.
Email this Content