Adjudicators’ Neutrality and Political Participation

The Ontario election is over and municipal elections are on the horizon. The Ontario election was a heated one and included the rare participation of police officers in the election campaign. Police officers have a “voice” outside of the institution of policing, since they are unionized. Adjudicators in the justice system do not have this external “voice”. (Although there are organizations of adjudicators, their main focus is continuing education and skills development). Adjudicators, like judges, are restricted from active participation in elections, even though they (like police officers) can have an interest in the outcome. Unlike judges, adjudicators (in Ontario) are also not permitted to speak publicly about administrative justice issues that are contained in any political party’s platform.

I was reminded of the restrictions on political activity at the beginning of the Ontario election. Since I am a part-time member of two Ontario tribunals, I received the generic email advising tribunal members of our obligations during an election campaign. There are special rules for tribunal members and other classes of public servants (referred to as “specially restricted” public servants). In this article I will use the term “adjudicator”.

In Ontario the Public Service of Ontario Act, 2006 (PSOA) allows an adjudicator to:

(a) vote in a federal, provincial or municipal election;

(b) contribute money to a federal or provincial party or to a federal, provincial or municipal candidate;

(c) be a member of a federal or provincial party; and

(d) attend an all-candidates meeting.

All other political activity is prohibited. “Political activity” is broadly defined in the PSOA, and includes:

• anything in support of or in opposition to a federal or provincial political party;
• anything in support of or in opposition to a candidate in a federal, provincial or municipal election;
• seeking to become a candidate in a federal, provincial or municipal election; or
• commenting publicly and outside the scope of the duties of his or her position on matters that are directly related to those duties and that are dealt with in the positions or policies of a federal or provincial political party or in the positions or policies publicly expressed by a candidate in a federal, provincial or municipal election.

It is not, perhaps, surprising that legislators would allow adjudicators to contribute financially to their cause. However, it is curious that contributing 100 dollars to a political party (triggering public reporting on Elections Ontario or Elections Canada websites) is allowed, yet putting a sign on your lawn is prohibited. It is far more likely that members of the public can determine political affiliation from online databases than from driving through your neighbourhood.

In addition, although financially supporting a party is permitted, it is not permitted to buy tickets to a political dinner or event. The Ontario Ethics Commissioner has parsed this as follows:

Section 89(1)(b) of the PSOA permits a specially restricted public servant to financially support a party or candidate. However, purchasing political fundraiser tickets not only provides financial support for a party or candidate, but also permits the purchaser to attend in person at the fundraiser. In so doing, the public servant is publicly identifying himself/herself as a supporter of a particular political party or candidate. In the commissioner’s view, this would likely be viewed as an additional step in support of a party or candidate and therefore would likely be considered outside the scope of political activity that is permitted under section 89.

The problem with this analysis is that political contributions are now posted online – which is also “publicly identifying himself/herself as a supporter of a particular political party or candidate”.

At the federal level, Governor in Council appointees are prohibited from financially supporting political parties.

Guilt by association

Family members are also affected by the restrictions on political activity. It seems clear that another family member cannot put a sign on the family lawn, since the public would not know who authorized the placement of the sign.

The Ontario Ethics Commissioner has advised that if a spouse is running for office, an adjudicator’s name or photograph should not appear in campaign material and he or she cannot attend an election night event. He reasoned that this would put the adjudicator at risk of being seen to support a candidate or political party, thereby contravening the restrictions on political activity. Try explaining this to your spouse — who may not appreciate this rather arbitrary distinction between support for her/him versus support for a party.

Speaking about the administration of justice

Judges must also be careful about entering into the political arena. The Code of Ethics for judges, counsels avoidance of public participation in controversial political discussions. In the commentary on the Code of Ethics, the Canadian Judicial Council notes that “while restraint is the watchword”, there are limited circumstances in which a judge may properly speak out about a matter that is politically controversial that directly affects:

• the operation of the courts,
• the independence of the judiciary (which may include judicial salaries and benefits)
• fundamental aspects of the administration of justice, or
• the personal integrity of the judge.

The restrictions on adjudicators are more significant. For example, the Ontario Ethics Commissioner was asked for advice from a chair of a public body on comments in a letter to the editor from a “specially restricted” public servant. The comments were about federal government policy concerning a specific sector. The Commissioner used a “reasonably well-informed member of the public” test to determine if this was “political activity” within the meaning under the PSOA. The Commissioner noted that while the comments did not explicitly discuss a substantive position taken by any federal government party, they did concern a sector affected by the mandate of the public body. The comments were also related to the decision-making duties of the public servant. However, the comments did not explicitly reflect the position of a specific political party. The Commissioner concluded that it was unlikely that the comments would constitute political activity. However, the Commissioner recommended that the public servant “be cautioned that, given the decision-making responsibilities of the public body and the public servant, such comments may cause members of the public to question the political neutrality of the public body and/or the public service in general.”

The PSOA states that political activity includes public comments outside the scope of the adjudicator’s duties “on matters that are directly related to those duties and that are dealt with in the positions or policies of a federal or provincial political party or in the positions or policies publicly expressed by a candidate in a federal, provincial or municipal election”. Apart from suggesting that an adjudicator should know all the positions and policies of all political parties before speaking publicly, this provision severely restricts the ability of adjudicators to speak publicly about issues related to the administration of justice. Adjudicators, like judges, have an important perspective on the administrative justice system and the public would benefit from hearing that perspective.