Freedom of speech not absolute

Health Canada scientist who ignited a political firestorm after speaking out against a ban on Brazilian beef loses bid to have suspension quashed

A Health Canada scientist who was suspended after speaking out against a ban on Brazilian beef in 2001 has lost her bid to have her punishment revoked.

Margaret Haydon, a drug evaluator in the bureau of veterinary drugs at Health Canada, sparked a political firestorm when she told a Globe and Mail reporter that a ban on Brazilian beef due to concerns over mad cow disease had nothing to do with public safety and everything to do with politics.

At the time of the beef ban, Canada and Brazil were embroiled in a highly publicized trade dispute concerning Bombardier and Embraer S.A., two aircraft manufacturers.

In the Feb. 9, 2001, Globe and Mail article two “senior Health Canada scientists” spoke out against the ban on Brazilian beef, calling it a ruse. Haydon was named in the article while the other scientist was anonymous.

“In my opinion, I don’t think there’s any difference (in risk) between Brazilian beef and Canadian beef,” Haydon said in the article. “With the aircraft dispute, it’s more a political move than a health one for the Canadian government.”

According to the evidence at trial, the Canadian Food Inspection Agency (CFIA) made the decision to suspend the importation of Brazilian beef after considering a broad range of scientific opinion at the national and international level. Haydon was not a member of the science teams assembled by Health Canada to assess the impact of the infectious diseases in question and her division was not responsible for such assessments.

Comments spark firestorm

In the wake of the newspaper article, the chief veterinary officer of the United States called CFIA and questioned Health Canada’s position. The chief veterinary officer with the Brazilian government also contacted CFIA and sought to cancel an upcoming trip by the Canadians because the concerns appeared not to be health related.

CFIA said the trip to Brazil was essential in order to complete a site evaluation and determine if Canada should reconsider its action.

A number of technical staff, who would have otherwise been preparing for the upcoming Brazilian trip, had to be diverted to deal with the deluge of briefing notes prepared for the government in light of Haydon’s comments.

Upon arriving in Brazil, there was a need for security arrangements for the team and Brian Evans, CFIA’s chief veterinary officer, was provided with a security guard for his hotel. Evans subsequently was moved to another hotel for his safety.

Haydon suspended, argues free speech

Haydon met with the person in charge of her division to discuss the comments. On Feb. 20 she was told she would be suspended for 10 working days.

She filed a grievance under the Public Service Staff Relations Act. She wanted the suspension to be rescinded and to be reimbursed for all lost salary and benefits with interest. She also wanted all related documents to be destroyed and she also sought compensation.

Haydon argued her right to free speech was guaranteed under the Charter of Rights and Freedoms.

The adjudicator who originally heard the case upheld the suspension, though it was reduced to five days. In making his ruling, the adjudicator cited the 1985 Supreme Court of Canada ruling in Fraser v. Canada (Treasury Board, Department of National Revenue) where the court recognized the importance of a loyal public service.

In Fraser the court identified three situations where freedom of expression prevails over the duty of loyalty to the government:

•when the government is engaged in illegal acts;

•when government policies jeopardize the life, health or safety of the public; and

•when the criticism does not have an impact on a public servant’s ability to perform effectively or on the perception of that ability.

The adjudicator said the government was not engaged in illegal acts and its policies did not jeopardize the life, health or safety of the public. Citing Haydon v. R., an earlier case involving the same Margaret Haydon following comments she made on a national television program regarding the drug review process at Health Canada, the adjudicator said the first avenue a public servant must follow before publicly criticizing a government policy is to raise her concern through the appropriate internal channels.

Therefore the adjudicator said it did not need to consider whether her comments about the Brazilian beef ban were permitted because she failed to raise the issue internally first before speaking to the Globe and Mail.

The adjudicator added, however, that if he was wrong in reaching that conclusion he still would have ruled against Haydon because her statements did not fall within the exception to the duty of loyalty rule as outlined in Fraser because they did not relate to health and safety.

He reduced the suspension because Haydon had not set out on her own to contact the press — the Globe and Mail had contacted her asking for comment about the ban.

Haydon appealed the ruling. The Federal Court upheld the adjudicator’s ruling that Haydon had breached her duty of loyalty and discipline was warranted. That ruling was appealed to the Federal Court of Appeal.

The Federal Court of Appeal upheld the adjudicator’s original ruling. Haydon argued freedom of expression is entrenched as a fundamental freedom under the charter.

The appeal court agreed that freedom of expression has been elevated to a fundamental freedom guaranteed under the charter. But it said it is still true that freedom of expression is not an absolute value.

“It must be qualified and balanced against other important and competing values,” said Justice Alice Desjardins of the Federal Court of Appeal. “In (this case), it must be considered in the light of the value of an impartial and effective public service.”

Justice Desjardins said the public service is part of the executive branch of government.

“Its fundamental task is to administer and implement policy decided upon and enunciated by the legislature,” she said. “In order to do this well, the public service must employ people with knowledge, fairness, integrity and loyalty. The duty of loyalty may, in certain circumstances, limit a public servant’s freedom of expression.”

The Court of Appeal pointed out that the lower court judge said this was not a case of whistleblowing. Haydon’s comments did not address pressing issues such as jeopardy to public health and safety or illegal acts by the government. The evidence showed she failed to check her facts and did not raise her concern internally before speaking to the Globe and Mail. But because she was a scientist, her comments carried significant weight and had an adverse impact on the operations of the federal government.

The adjudicator noted the weight her opinion carried: “She was a scientist with Health Canada saying this was not a health issue … this may have caused confusion among members of the public and it certainly led to disruption within the department.”

The Federal Court of Appeal agreed, upholding the adjudicator’s decision and dismissing Haydon’s appeal.

For more information see:

Haydon v. Canada (Treasury Board), 2005 CarswellNat 1845, 2005 FCA 249 (F.C.A.)

Fraser v. Canada (Treasury Board, Department of National Revenue), 1985 CarswellNat 669, 9 C.C.E.L. 233 (S.C.C.)

Haydon v. R., 2000 CarswellNat 2024, 192 F.T.R. 161 (Fed. T.D.)

To read the full story, login below.

Not a subscriber?

Start your subscription today!