Navigation Links

Skip to main content
Skip to primary navigation

Common menu bar

Breadcrumb

Home >
The Federal Prosecution Service DESKBOOK >
Chapter 50

The Federal Prosecution Service DESKBOOK

[ Previous | Table of Contents | Next ]

Part X
EMPLOYMENT RELATED ISSUES
Chapter 50

50 OUTSIDE EMPLOYMENT

50 OUTSIDE EMPLOYMENT

50.1 Introduction

Employees of the Department of Justice, like all public servants, may accept employment and become involved in volunteer activities in addition to their regular duties. However, there are some limitations to this general rule because of the principle that employees are paid salaries from public funds and their primary obligation is to work for the Crown¹.

“Outside employment” may be defined as any work that is carried out for pay in addition to a person's regular employment duties. It may include entering into contracts with government or private organisations, editing or writing books for publishers for a fee, and the practice of law. While these types of activities would usually be done outside of regular working hours, some employees may, for example, want to teach during the day for short periods of time. As a result, employees may have to discuss issues concerning conflict of interest, terms and conditions of employment, and contracting policy if they want to undertake work in addition to their daily responsibilities.

The rules governing outside employment are found in a variety of policies and statutes and include the Treasury Board Conflict of Interest and Post-Employment Code for the Public Service (the Treasury Board Code)², the policy on dual remuneration, as it relates to employees who are subject to a collective agreement (e.g. secretaries), the principles found in rules of professional conduct for lawyers, the Criminal Code, the Treasury Board Contracting Policy³ and the terms and conditions of employment for lawyers.

The purpose of this policy is to summarize of the applicable rules to provide guidance to employees.

50.2 Statement of Policy

The general rule governing outside employment is based, in part, on section 26 of the Treasury Board Code which states as follows:

Involvement in outside employment and other activities is not prohibited unless the employment or other activity is such that it is likely to result in a conflict of interest. It is the responsibility of the employee to make a Confidential Report to the designated official of involvement in any outside activity that could place on the employee demands inconsistent with his or her official duties and responsibilities, or call into question the employee’s capacity to perform his or her official duties and responsibilities objectively. The designated official may require that such activity be curtailed, modified, or ceased, when it has been determined that a real or potential conflict of interest exists.

Crown counsel must also keep in mind the general principles set out in section 6 of the Treasury Board Code and which underlie the concept of conflict of interest. Pursuant to the Code, public servants are expected to remain independent, impartial and objective in the performance of their duties. They cannot take advantage of their job, to the detriment of the public interest.

While Crown counsel can undertake outside employment, there are limitations on the type of employment because of the nature of their responsibilities. Counsel must always bear in mind the obligations which flow from their duty to the Crown, including solicitor-client privilege, the duty of confidentiality, and licensing and insurance fees with their law society.

50.3 Limitations on Outside Employment

There are two main limitations on outside employment.

50.3.1 The Practice of Law

Crown counsel, like all counsel employed by the Department of Justice⁴, cannot engage in the private practice of law. This rule forbids activities such as working for a law firm in the evening or providing legal advice to family members. Counsel employed by the Department of Justice work exclusively for the Crown. The work of the Crown is complex and far-reaching and brings into question difficult ethical and professional responsibility issues. Crown counsel must be vigilant in the safeguarding of information gathered as part of a solicitor-client relationship. They owe a duty of confidentiality to the Crown and their role in the system of justice is vital to the public’s perception of justice. Lastly, Crown counsel should be aware of the limits of indemnification which are set out in the Treasury Board Policy on the Indemnification of and Legal Assistance for Crown Servants⁵.

50.3.2 Appearance and integrity

Crown counsel cannot undertake work which by its nature would appear to be inconsistent with their professional obligations or the exercise of their judgment as counsel. For example, if a Crown counsel were to work part-time in a bar reputed to be frequented by drug traffickers, members of the public might reasonably question whether counsel had compromised his or her ability to perform their duties. Crown counsel must be careful to avoid actions which might undermine public confidence in the administration of justice.

50.4 Operation of the Policy

50.4.1 The Treasury Board Conflict of Interest and Post-Employment Code for the Public Service

The Treasury Board Code is a term and condition of employment of each public servant. It is the responsibility of each employee to review their circumstances and decide if their actions or their circumstances place them in a conflict of interest. Failure to observe the Treasury Board Code may result in disciplinary measures. Employees can be asked to modify or stop certain activities.

The Associate Deputy Minister responsible for corporate management) is the senior official in the Department who is responsible for the implementation of the Treasury Board Code. Corporate Counsel provides advice to the Associate Deputy Minister on conflict of interest and ethical issues. In cases of doubt counsel should discuss their concerns with their manager and with the Corporate Counsel or the Associate Deputy Minister, as appropriate. The Assistant Deputy Attorney General (Criminal Law) should also be advised of any potential breaches of the Code.

50.4.2 Contracting

Public servants can enter into contracts but they must observe certain rules.

Employees cannot be given preferential treatment in the award of contracts. If the money comes from the federal government (i.e. the Consolidated Revenue Fund), they must obtain written consent for purposes of the policy on dual remuneration, in the case of employees who are governed by a collective agreement, and the terms and conditions of employment for those who are not members of a union (i.e. lawyers)⁶. The Associate Deputy Minister responsible for corporate management provides consent on behalf of the Deputy Minister. The manager must first decide that the performance of the additional duties does not interfere with the employee’s ability to do their job.

In the case of lawyers the Terms and Conditions of Employment state as follows:

Unless authorized by or under an Act of Parliament, no payment additional to the remuneration applicable to an employee’s position(hereinafter referred to as “his or her regular position”) shall be made out of the Consolidated Revenue Fund to an employee in respect of any service rendered by the employee unless the Deputy Minister certifies that, in his or her opinion, the performance of the additional service does not impair the employee’s effectiveness in his or her regular position.

As noted previously, employees must keep their outside employment and their work for the Crown separate. For example, they cannot use computer equipment or supplies to perform work which is not for the Crown. Former public servants who receive a pension may also have their contracting fees reduced.

Lastly, employees should keep in mind sections 118-122 of the Criminal Code⁷. These provisions apply where public officials are offered money for inappropriate purposes. Crown counsel should note in particular paragraph 121(1)(c) which requires that employees not accept benefits from organizations which have dealings with the government, without first obtaining written consent. The Associate Deputy Minister responsible for corporate management provides written consent.

50.5 Conclusion

This section provides only a brief summary of some of the relevant policies and laws which apply when Crown counsel want to accept employment which is in addition to their regular duties. It is critical that the Federal Prosecution Service not be subject to any allegations that any particular Crown counsel is, or appears to be, in violation of any of the provisions referred to above. In cases of doubt counsel should speak to their Group Head or contact the Office of Corporate Counsel ⁸.

1 Different considerations apply to volunteer activities and this policy is not specifically directed at such activities.

2 See the Treasury Board website at www.tbs-sct.gc.ca under the “Human Resources Management” section of “Policies and Publications” for the complete text of the Treasury Board Code.

3 Treasury Board website, note 2, under the “Contracting” section of “Policies and Publications”.

4 “Crown counsel” in this context does not include legal agents, who are engaged in the private practice of law in addition to their prosecutorial duties. See Part II, Chapter 7, “The Role of Agents in the Delivery of Prosecution Services”. Legal agents are, however, subject to the limitations expressed in 7.3.2 “Appearance and Integrity”.

5 See the Treasury Board website, note 2, and Part X, Chapter 49, “Civil Liability of Crown counsel”.

6 See the Treasury Board website at www.tbs-sct.gc.ca under the “Compensation” section of “Policies and Publications” for information related to employees who are governed by collective agreements; for lawyers a copy of the terms and conditions of employment can be obtained from Human Resources, Department of Justice.

7 See also the two leading cases governing interpretation of these provisions, R. v. Hinchey, [1996] 3 S.C.R. 1128, and R. v. Cogger, [1997] 2 S.C.R. 842.

8 The Office of Corporate Counsel also has a website on the Department of Justice Intranet site, under the Associate Deputy Minister responsible for civil law and corporate management.