Case: Sinclair v. Canada (Attorney General), 2024 FCA 57 (CanLII)

Keywords: elections; Crown prosecutor; public office; mootness

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The Appellant, a Crown prosecutor in Whitehorse, Yukon, applies to the Public Service Commission of Canada (“PSC”) for permission to seek the nomination as (and if successful to be) a candidate in the 2021 Yukon territorial election. The PSC denies the Appellant’s request. (See para. 1).

After the election, the Appellant files an application with the Federal Court for judicial review of the PSC’s decision. The Federal Court Judge (Sandrehashemi J.) finds the application moot on the basis that the election took place before the Appellant made his application for judicial review. (See para. 3; Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC)).

The Appellant appeals on the basis that the Federal Court Judge erred by declining to exercise her discretion to decide his application, based on the record. (See para. 6). The Federal Court of Appeal (Webb, Woods, and Heckman JJ.A.) dismisses the appeal. (See para. 16).


The Appellant herein was seeking “statements of general principles from this Court that could be applied to any future decision of the PSC on an application by a public prosecutor for permission to be a candidate in an election.” (See para. 7).

The Federal Court of Appeal observed that such guidance “had already been provided”. Specifically, the Court found that Taman v. Canada (Attorney General), 2017 FCA 1 (CanLII) covers the issues of what must be addressed in a decision of the PSC regarding a request by a public prosecutor to be a candidate in an election. (See para. 8). Moreover, the recent case of Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Language, Culture and Employment), 2023 SCC 31 (CanLII) addresses the application of Charter rights and values in administrative decisions. (See para. 9).

Accordingly, the Federal Court of Appeal outlined the following principles:

    • a decision by the PSC refusing to grant a public servant permission to seek elected office must be justified; and
    • such decisions must reflect a proportionate balancing of underlying Charter rights or the values underlying them. (See para. 10; Taman at para. 47; Vavilov at para. 95; Commission scolaire at para. 73).

The Federal Court of Appeal went one step further – finding that, even though some of the declaratory relief sought by the Appellant was “moot”, there was an additional matter that “warrants a comment”. (See paras. 12-14). The Court determined that any decision under of the Public Service Employment Act, S.C. 2003, c. 22, ss 12, 13 (i.e., to grant or deny permission for a public servant to be a candidate in an election), is to be based on the facts and circumstances related to that particular person. Accordingly, a “blanket prohibition” on any Crown prosecutor would not be consistent with the Act. (See para. 15; s. 112 of the Public Service Employment Act).

Counsel for the Appellant: Andrew Montague-Reinholt and Adrienne Fanjoy (Nelligan Law, Ottawa)

Counsel for the Respondent: Michael Roach and Amanda McGarry (Department of Justice Canada, Ottawa)

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