Let’s keep some things straight about the public service

Hey there, time traveller!
This article was published 28/03/2025 (225 days ago), so information in it may no longer be current.

It seems like a question with an obvious answer: whom do public servants serve? Surely the answer is in their title — the public!

But a perverse answer is currently being promoted by the occupant(s?) of the Oval Office of our neighbour to the south, and it is worth asking whether we here in Canada have a better understanding of the functioning of the democratic state and those employed in its service.

U.S. President Donald Trump (and Department of Government Efficiency head Elon Musk) and the current members of the Trump cabinet are carrying on as if persons employed in various units of the U.S. federal public service owe personal loyalty to them and must share their specific values or lack of them. They feel entitled to hire and fire at will. Already both public servants and public-interest litigants are resisting both of those fallacious and anti-democratic notions, but it is not yet clear how these issues will be sorted there.

The competing views in the U.S. are evident in the statement made by some state actors there that they “swore an oath to uphold the constitution, not to serve a king.”

Do we, in Canada, have a better grasp of these issues? Not long ago, when it was proposed that (federal) public servants are employees of the democratic Canadian state and owe their duty of loyal service to the state as the democratic instrument of its citizens, a former head of the federal public service asserted this was a most dangerous idea and claimed that the public service serves ministers.

That is precisely the equivalent of the view being now presumed by Trump and his minions. Let me attempt to clarify how terribly wrong that view is.

Think about the difference between working for an individual and an organization. If you are employed by an individual, then it makes sense to acknowledge that individual’s authority to give all work-related directions (including hiring and firing).

But if your employer is an organization, you know that the persons responsible for management of the organization’s enterprise or activity are not the owners; they are merely representatives of the owning organization. So, if you are employed by a community centre and the president asks you to transfer money from the centre’s accounts to him or her personally, you know that you have a duty to the organization that employs you to ensure it is a proper organizational expenditure and that it is not merely the president stealing the community centre’s funds.

It is absolutely no different in the public service. The assets a public servant uses or administers are in no way the personal property of any minister, nor of the ministers together. Public assets belong to the province or the federal aspect of the Canadian democratic state. They need to be dealt with in accordance with the rules and decisions of the relevant public body. Neither Manitoba nor Canada, by appointing persons as ministers, give them unlimited authority over the assets of the state nor over the staff (public servants) of Manitoba or Canada.

The operation of any democratic organization is somewhat cumbersome. That is the cost of having the organization reflect the interests and will of its members. A democratic organization that has more than a handful of members will typically establish decision-making procedures, usually resulting in a hierarchy of decision-making authorities and a corresponding hierarchical pyramid of norms or decisions.

A typical organization may have: members, elected representatives, officers and a staff.

The organization’s decisions will, typically, include items such as the following: a foundational document such as a constitution or articles of incorporation (often requiring some special process or majority to amend); bylaws or statutes (typically made by the elected representatives and, in the case of corporations, often requiring ratification by members); resolutions or similar decisions of the elected representatives (typically not needing member involvement); administrative decisions and directions (made by officers or managers of the organization); and, on-the-ground day-to-day actions by staff carrying out the above hierarchy of decisions.

The democratic Canadian state is an organization — a complex, large and powerful one, but no less an organization for that. It has citizens, representatives elected by the citizens, officers (we call them ministers) and a staff (the public service). It has a constitution, statutes, regulations, administrative directions and day-to-day decisions that represent the hierarchy of decisions/actions by the state (think of the “supremacy of Parliament” and the “rule of law” as expressions of this hierarchy).

It is always a fundamental error to conflate the persons acting in an organizational capacity with the organization itself. The president of a corporation does not, by virtue of being its president, own personally all the corporation’s assets. Nor are the officers taken together (the organization’s executive cadre) to be confused with the organization.

If the board of a business corporation with shareholders decided to appropriate all the corporate assets for their own personal use, the shareholders would justifiably be outraged.

If we want to avoid the sort of chaos taking place in our southern neighbour, one thing we should become clear on is this: Canada’s public servants serve the democratic state as the instrument of its citizens; they are not the pawns of any prime minister, premier or cabinet.

Their duty is to carry out the decisions of the appropriate state authority. Where those decisions are expressed in the constitution, they are to uphold the constitution; where they are expressed in statutes, they are to uphold those statutes, doing their work in compliance with them.

Only where Parliament has — expressly, implicitly or through forbearing to legislate — given a state’s officer (minister) authority in a matter is the direction of a minister to be the final word for public servants.

In the organization that is the democratic Canadian state, ministers (the root meaning of “minister” is “servant”) are not the highest authority and are never above the law. Let’s remember that as citizens and never allow our ministers or public service managers to act otherwise.

Edgar Schmidt is a retired Manitoba lawyer and served as general counsel in the federal Department of Justice.