The Supreme Court found that while maintaining the neutrality of the public service was important enough to justify a limit on freedom of expression guaranteed under the Charter of Rights and Freedoms, then-Section 33(1)(a) of the PSEA failed to meet the test of proportionality. In other words, it went too far.
The Court said “…Section 33 does not constitute a measure carefully designed to impair freedom of expression as little as reasonably possible. The section bans all partisan-related work by all public servants, without distinction either as to the type of work or as to their relative role, level or importance in the public service hierarchy.” (emphasis added)
“The result of the broad general language of Section 33 is that the restrictions apply to a great number of public servants who in modern government are completely divorced from the exercise of any discretion that could be in any manner affected by political considerations. The need for impartiality and indeed for the appearance thereof, does not remain constant throughout the civil service hierarchy. Section 33, therefore, is over-inclusive and, in many of its applications, goes beyond what is necessary to achieve the objective of an impartial and loyal civil service.” (emphasis added)