This action is, therefore, moving toward trial and a determination of the core issue: what do the examination provisions require -- an assessment/opinion as to consistency with the Charter and Bill of Rights (and as to authority for their making in the case of proposed regulations) or merely an assessment/opinion as to whether some argument exists in the general direction of consistency and authority.
There are also certain issues that are implicitly raised by this action and on which I think some clarification and guidance from the court could be very useful as guidance for future conduct by state actors such as ministers, managers and public servants.
1. Would the Departmental interpretation of the examination provisions ever have arisen if the Minister and Deputy Minister had understood that it was the duty of all ministers of the Crown, all managers in the public service and all other state actors in all their official acts to act in conformity with the state constitution and its statutes?
2. Would the Department’s response to the plaintiff’s concerns have been more consistent with the public interest from the outset if the Minister and Deputy Minister had understood clearly that it is Her Majesty or the constitutional, democratic Canadian state that is the employer of the public service and the entity to which public servants’ duty of loyalty is owed?
3. Would it be useful to the proper functioning of the Canadian state and its public service if the court were to clarify that an action seeking a declaration of the law is an appropriate course of action for a public servant when the directions he or she is given by his or her supervisors are reasonably perceived to be unlawful and the supervisors cannot be persuaded to remedy the situation?
4. Public servants owe their employer a duty of loyal service. If in performing that duty, a public servant takes steps to bring a non-compliance with the employer's directions to the employer's attention so it can be corrected, does the employer owe a corresponding duty to the public servant to ensure that he or she is not subject to reprisals or mistreatment by those responsible for the non-compliance?
5. Would this action have required a trial at all if the Attorney General had understood that it is his duty, when he is named as defendant on behalf of the Crown (or the democratic, constitutional Canadian state) to act in the interests of that state as a whole and not primarily in the interests of the officers or managers whose conduct is in question? If he had understood that in acting for the state, he was required to take into account the implications of any position adopted by him for the state as a whole including for its legislative branch and its citizens?
6. In the future, when the Attorney General acts for the democratic, constitutional Canadian state in litigation involving allegations of unlawful or improper conduct by the Deputy Minister of Justice and/or the Minister of Justice, would it better ensure the advancement of the interests of the Attorney General’s true client (the democratic, constitutional Canadian state) if the Attorney General, in naming counsel to act on his behalf, were to appoint counsel who do not report to the alleged wrongdoers, thus having the independence required to act in the interests of the state as a whole?