When Public Servants are allowed to publicly question the policies of the Government ?

I have attended the Navigating Social Media as a Public Servant (TRN125) course that is offered to Public Servants and got there the answers to some of my questions.

Disclaimer: This blog is the result of my personal research and opinion. Please consult original sources and seek for assistance within your organizations to know what you can and cannot post being a Public Servant (i.e. being employed by the Government).

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Preface:

If you do not work for the government, you may not be aware that government employees, also known as public servants, are required to demonstrate loyalty to their employer by refraining from criticizing them on any matters. Additionally, public servants must obey the orders of their superiors, who in turn must follow the instructions of their own superiors, all the way up the hierarchy to the minister, regardless of the subject matter. This includes decisions about which images or numbers to use in reports or instructions to remain silent on specific topics. I have personally witnessed both of these expectations being enforced.

This explains why the individuals questioning government actions or policies are typically retired or have been already terminated from their positions. Otherwise, they would face disciplinary actions, starting with suspension without pay, increasing in duration, and eventually leading to termination if the person chooses to persist in questioning government actions and policies.

That's what I was informed at some point. However, I recently discovered that this is not entirely accurate. There is an exemption to these obligations known as the "Duty of Loyalty" and "Duty of Subordination," which is not commonly emphasized during the hiring process for government positions. I learned about this exemption only recently, thanks to valuable training that was recommended to me. This exemption applies to matters that pertain to "jeopardizing the lives and health of Canadians."

The purpose of this article is to explore this exemption in more detail. Below is a quick summary, followed by further elaboration on the topic.

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Summary:

In September 2022, what I have known for quite some time (more exactly since February 2022) from my own analysis of official data (see full story at www.whocantellmethetruth.ca) has been made officially known to general public by Statistics Canada and PHAC:

• FACT #1: There was "significant excess mortality starting in January 2022", especially “among individuals younger than 45”.

• FACT #2: There were very few COVID-19 "cases deceased" in this age group throughout the entire pandemic, including since January 2022, indicating that the majority of unexpected deaths among young Canadians since January 2022 were due to causes unrelated to COVID-19.

• FACT #3: January 2022 marked the implementation of COVID-19 vaccination requirements for this age group for studying at universities and other educational and sporting institutions in Canada.

Based on the exemption mentioned above regarding the Duty of Loyalty and Duty of Subordination, any public servant has the right to publicly express concerns, ask questions, demand investigations, and raise issues regarding the increase in sudden unexpected deaths of young Canadians since January 2022. This is particularly relevant considering that this increase in deaths coincided with the implementation of mandatory vaccinations for this population. Whether there is a causal relationship or a mere coincidence, it is within the rights of public servants to explore and investigate these matters in order to ensure the safety and well-being of Canadians.

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Details:

I have attended the Navigating Social Media as a Public Servant (TRN125) Course that is offered to Public Servants, where I was able to seek answers to some of my inquiries. The two main questions I posed were as follows:

1. In which cases are Public Servants allowed to criticize government officials and publicly express opposition to the policies of a government ?

2. Can  Public Servants publicly seek for answers on questions related to vaccine safety and efficacy, ask for the causes that led to significant increase of excess deaths among young Canadians since January 2022 until present (as being reported by Statistics Canada since September 2022), and raise concerns about using vaccine for themselves and the members of their family, in particular for their children?

In response to these questions, the course instructor pointed me to the following resources that examine this question in detail.

• Duty of Loyalty - Canada.ca, https://www.canada.ca/en/treasury-board-secretariat/services/values-ethics/code/duty-loyalty.html#p05

  • The Fraser case

• Public servants disclosure protection - Canada.ca

  • Frequently asked questions on the Public Servants Disclosure Protection Act - Canada.ca: https://www.canada.ca/en/treasury-board-secretariat/services/values-ethics/disclosure-protection/frequently-asked-questions-public-servants-disclosure-protection-act.html

The first reference provide the following guidance

"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. And indeed, in some circumstances a public servant may actively and publicly express opposition to the policies of a government. This would be appropriate if, for example, the Government were engaged in illegal acts, or if its policies jeopardized the life, health or safety of the public servant or others, or if the public servant's criticism had no impact on his or her abilities to perform effectively the duties of a public servant or on the public perception of that ability. 

The Duty of Loyalty document references several court cases of public servants who have spoken out publicly against their department’s policies in some way. This qualification (jeopardy to life, health or safety) forms one of the criterion for assessing when a public servant is justified in breaching their duty of loyalty to the GoC. The cases referenced, and jurisprudence that exists around this issue are talking about public servants who wish to criticize their department/agency for their programs/policies, etc. (or make public, some internal information [e.g. whistleblowing]) -- not public servants who are simply reposting and commenting on already published articles in mainstream media.

From here it appears that I should be allowed to post on matters where “Government policies [that] jeopardize life, health or safety” , which also related to the case of covid vaccine administration, as they have now been confirmed - including at official level - may lead to severe adverse reaction and are no longer recommended since March 3, 2023 for children and general not immunocompromised public. - See video with Prime Minister saying that and the quote below.

“…Given the current COVID-19 epidemiology…, and generally high levels of antibodies against COVID-19 from vaccines and/or infection among Canadians, NACI is currently not recommending an additional bivalent booster for the general population this spring.“ (Source:  National Advisory Committee on Immunization (NACI) - Source: https://www.canada.ca/content/dam/phac-aspc/documents/services/publications/vaccines-immunization/national-advisory-committee-immunization-summary-guidance-additional-covid-19-booster-dose-spring-2023-individuals-high-risk-severe-illness-due-covid-19-march-3-2023/summary.pdf. )

The second reference provides the following as one of the examples of wrongdoing:

Example of wrongdoing:
doing something—or failing to do something—that creates a substantial and specific danger to the health, safety, or life of persons or to the environment;

From here it appears that not sharing vaccine risk-benefit recommendations in a timely manner, or preventing me from doing that, or preventing me to express concerns on other the matters that affect life and health of many Canadians (such as child trafficking, sexual mutilations, war in Ukraine, etc.) , may also be considered as wrong-doing.

Appendix: Quotes from the Sources

Public Servants Codes of Conduct:

• Department of National Defence and Canadian Forces Code of Values and Ethics: https://www.canada.ca/en/department-national-defence/services/benefits-military/defence-ethics/policies-publications/code-value-ethics.html

  
  11. General responsibilities and duties of DND employees and CF members include the following:

  11.9 refraining from public criticism of the Government of Canada;
  

• Canada Border Services Agency Code of Conduct: https://www.cbsa-asfc.gc.ca/agency-agence/reports-rapports/acc-resp/code-eng.html
  
  5.2. Public Criticism of the CBSA and/or the Government of Canada

  We refrain from making public criticisms of the CBSA and/or the Government of Canada including posting critical comments on social media fora.

  Furthermore, we know that the duty of loyalty is not absolute and public criticism may be justified in certain limited circumstances.
  
  CAUTION:

  CBSA employees must exercise caution to ensure that their public statements:

  • do not undermine or compromise the integrity or security of CBSA operations, its employees or national security;

  • do not impair or conflict with their ability to carry out their duties;

  • do not call into question their impartiality in carrying out their duties; and

  • do not impair the ability of the CBSA to carry out its mandate.
    

  If in doubt, you are strongly encouraged to discuss the matter with your manager. You should use internal means to bring any criticisms you may have to the attention of CBSA management.
  

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Quotes TBS document on The Fraser case

The Supreme Court of Canada's ruling in 1985 in Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455, ("Fraser"), is the leading case in Canada on the duty of loyalty. Although it did not refer to previous court or arbitral decisions on the duty of loyalty, the judgment continued and confirmed the reasoning of previous decisions. It addresses a broad range of the issues enumerated above and spells out principles, qualifications and factors that can be applied to other situations. As a judgment of the Supreme Court of Canada, it is binding on lower courts. The subsequent cases involving the duty of loyalty referred to later in this text have cited this decision and endeavoured to apply it to the situations brought before them.