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On the duty to be loyal

December 18th, 2015 | Posted by Amy Boughner in Issues | Work

The public service was in the news a lot this election and continue to be so now that we have a new Liberal government. First when they applauded a visit by the new Prime Minister to Foreign Affairs and now because of a report put out by Canadians for Tax Fairness.

The report consisted of interviews with anonymous current and former public servants at Canada Revenue Agency who made claims that politics were getting in the way of audits of corporations that may be evading taxes with offshore accounts.

You can find the full report here.

Now the question is whether these anonymous public servants are acting for the public trust and deserve protection as whistleblowers or whether they are breaking their vow to remain “professional and non-partisan.”

Public servants have a duty of loyalty to their employer (the Government of Canada) as outlined in the Values and Ethics Code of Conduct. But this code of conduct also refers to a “fundamental role to play in serving Canadians, their communities and the public interest.”

As such, it is up to public servants, and possibly the courts, to decide whether things like these anonymous interviews are a breach of the code or that these public servants were acting in the public interest.

The Conservative Party in particular is upset about this report and is calling on the current government to investigate what happened here. There is an irony here in that the Conservative Party under Stephen Harper was elected on the promise of an accountability act that included whistleblower protection.

These protections were meant to allow public servants and, in fact, all Canadians to report government wrongdoing: “These changes will help create an environment in which employees and all Canadians can honestly and openly report wrongdoing in the federal government without fear of reprisal.”

These particular public servants opted to go to Canadians for Tax Fairness to report what they felt was government mismanagement and political interference that meant that tax laws were not being fairly implemented.

This case highlights two aspects of the Duty of Loyalty specifically: 1) The duty of loyalty owed by public servants to the Government of Canada encompasses a duty to refrain from public criticism of the Government of Canada but 2) However, the duty of loyalty is not absolute, and public criticism may be justified in certain circumstances.

But those circumstances have to fit into specific categories:

the Government is engaged in illegal acts;
Government policies jeopardize life, health or safety; or
the public servant’s criticism has no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability.
In this case the public servants would need to explain publicly that they believe that one of these circumstances apply, presumably that the government was engaging in illegal acts. It would be difficult to argue that tax evasion either jeopardizes life, health or safety or that this criticism would not impact their ability to perform their duties.

The facts of these case seem to require an investigation, as the Tories are calling for, though there is a chance that the anonymous public servants would be vindicated in an investigation.

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