A-470-86
Robert Thomson (Applicant)
v.
The Queen (Respondent)
INDEXED AS: THOMSON V. CANADA
Court of Appeal, Hugessen, Stone and Desjardins
JJ.—Ottawa, February 2, 3, 4 and March 7, 1988.
Security intelligence — Successful candidate for public
service position denied security clearance at "Secret" level by
Deputy Minister — Complaint to Security Intelligence Review
Committee — Committee recommending grant of security
clearance — Deputy Minister maintaining denial — Nature of
"recommendations" under s. 52(2) Canadian Security Intelli
gence Service Act — Discussion of statutory scheme
"Recommendations" not merely advisory — Once complaint
filed issue whether clearance rightfully denied taken from
deputy head and given to Committee — Deputy head bound to
act upon Committee's recommendation — Application dis
missed as Deputy Minister's decision to maintain refusal not
reviewable under s. 28 Federal Court Act.
Public service — Selection process — Employment offer
conditional on receiving security clearance — Deputy Minister
denying security clearance at "Secret" level based on assess
ment by Canadian Security Intelligence Service — Investiga
tion revealing disclosure of classified information by applicant
— Complaint to Security Intelligence Review Committee —
Latter recommending required security clearance be granted
— Deputy Minister maintaining refusal — Deputy Minister
having duty to act upon Committee's recommendation —
Filing of complaint under Act ousting any discretion Deputy
Minister may still hold under Cabinet Directive No. 35 to
determine public servant's reliability — Decision of Deputy
Minister to maintain refusal not, however, reviewable under s.
28 Federal Court Act.
Federal Court jurisdiction — Appeal Division — Security
intelligence — Deputy Minister denying security clearance
regarding offer of public service employment — Complaint to
Security Intelligence Review Committee — Committee recom
mending security clearance be granted — Deputy Minister's
decision to maintain refusal not reviewable under s. 28 Federal
Court Act — Administrative act, not decision made on judicial
or quasi-judicial basis, required to implement Committee's
recommendation — Proper relief mandamus — Deputy Min-
ister's duty arising because of binding recommendation made
in accordance with Canadian Security Intelligence Service Act.
Construction of statutes — Canadian Security Intelligence
Service Act — Deputy head refusing to act upon Security
Intelligence Review Committee's recommendation that security
clearance for public service employment be granted — Nature
of Committee's "recommendations" under s. 52(2) of Act —
Word to be construed having regard to entire statutory scheme
relating to investigation of "complaint" under s. 42 of Act —
Admissibility of legislative history to determine Parliament's
intention — Detailed statutory scheme indicative of Parlia
ment's intention not to confer on word "recommendations"
literal sense of advisory — Incidence of consequential and
related amendments — Deputy head having duty to act upon
Committee's recommendation.
In 1984, the applicant was offered the position of Project
Planning Officer in the International Affairs Directorate of
Agriculture Canada on the condition that he obtain a security
clearance at the "Secret" level. The applicant informed the
Departmental Security Officer that he had resigned from
CIDA in 1974 when suspected of having leaked a classified
document. The Security Officer requested the RCMP to con
duct a field investigation. Upon the coming into force of the
Canadian Security Intelligence Service Act, the investigation
was turned over to the Canadian Security Intelligence Service
(CSIS). CSIS recommended that the applicant not be placed in
a position where he would have access to assets classified in the
national interest. That assessment was based on information to
the effect that the applicant had, inter alia, revealed the
contents of a classified telex to a Member of Parliament and
offered to provide classified information to agents of foreign
governments. On the basis of the CSIS recommendation, the
Deputy Minister denied the security clearance. The applicant
made a complaint to the Security Intelligence Review Commit
tee as contemplated by section 42 of the Act. Following investi
gation into the complaint, the Review Committee recommend
ed that the Deputy Minister grant security clearance at the
"Secret" level. The Deputy Minister maintained the denial
notwithstanding the Committee's recommendation. The appli
cant seeks to have the decision of the Deputy Minister set aside
pursuant to section 28 of the Federal Court Act.
The applicant submits that having regard to the scheme and
purpose of the Act, the Deputy Minister was bound to act upon
the recommendation of the Committee and that he erred in law
by denying the security clearance. The respondent argues that
this Court is without jurisdiction under section 28 because the
decision to deny clearance was made pursuant to the Royal
prerogative as expressed in Cabinet Directive No. 35 of 1963,
dealing with "Security in the Public Service of Canada", and
that the Act in no way impinges upon the Deputy Minister's
authority to decide the matter in accordance with the Directive.
The first issue is whether the Deputy Minister is required to
act in accordance with the Review Committee's "recommenda-
tion". This issue involves a determination of the nature of the
"recommendation". In the affirmative it must be determined
whether the Deputy Minister's decision is one that is reviewable
under section 28.
Held, the application should be dismissed.
The word "recommendations" in subsection 52(2) of the Act
must be construed having regard to the entire statutory scheme
relating to the investigation of a "complaint" by an individual
denied employment in the Public Service by reason of the
denial of a security clearance. The nature of the scheme
indicates an intention of Parliament to provide the complainant
with redress rather than with merely an opportunity of stating
his case and of learning the basis for the denial. The expression
of that intention can be found in statements made before the
House of Commons and the Parliamentary Committee to the
effect that the proposed statute would give the complainant "a
recourse" and would exchange "the present mandate, estab
lished by a Cabinet directive ... for a legislated mandate".
Certain statutory provisions, such as the need to provide all
parties concerned with a summary of the information available
to the Committee (section 46), the need for prior notice (sec-
tion 47), the opportunity for all concerned to present evidence
and be heard by counsel (subsection 48(2)), the summoning of
witnesses and the production of documents (section 50), and
the extent of access granted to the Review Committee to
sensitive information (section 39), all indicate an intention that
the Committee be given the ability to examine the entire basis
on which a denial rests to ensure such redress as its investiga
tion may indicate. By adopting such a detailed scheme which
includes the obligation for a formal report in which "findings"
and any "recommendations" are to be stated, Parliament did
not intend that the "recommendations" be merely advisory or
suggestive. Courts have been unwilling to interpret the word
"recommendations" in such a literal sense if the particular
statutory scheme in which it appears points to a different
conclusion. Moreover, the consequential and related amend
ments to the Canadian Human Rights Act, the Citizenship Act
and the Immigration Act, 1976 indicate that Parliament did
not use the word "recommendations" in its literal sense; in all
those cases, Parliament authorized the Review Committee to
make "findings" or "conclusions" which the ultimate decision
maker is authorized to "consider".
The Act does not address itself directly to the manner in
which the initial decision is made. It enters the picture only
when a "complaint" has been filed. At that point, the question
whether a clearance was rightfully denied is taken away from
the deputy head and turned over to the Review Committee
which acts in accordance with the procedures set out in the Act.
The Act gives the deputy head the opportunity to defend his
decision and CSIS, to defend its advice to the deputy head. The
entire basis for the denial is thus opened to investigation
including any subjective assessment of the complainant's relia
bility that may be required.
It follows that the Deputy Minister's refusal was based upon
a misconstruction of subsection 52(2). He was wrong in exercis
ing a discretion that he claimed to still hold under Cabinet
Directive No. 35. The deputy head is not entitled to "re-make"
a decision he has already rendered after the matter has become
the subject of a "complaint" and of a "recommendation".
However, the decision of the Deputy Minister to deny secu
rity clearance does not fall within the jurisdiction conferred on
this Court by section 28. Only a purely administrative act,
rather than a decision made on a judicial or quasi-judicial
basis, is required to implement the Committee's recommenda
tion. The appropriate relief would be mandamus under section
18 of the Federal Court Act compelling the performance of a
statutory duty. That duty arises here because of the existence of
a binding recommendation duly made in accordance with the
Act by Parliament's instrumentality, the Review Committee.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Evidence Act, R.S.C. 1970, c. E-10, s. 36.3(1)
(as added by S.C. 1980-81-82-83, c. Ill, s. 4).
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), s. 2(b),(d).
Canadian Human Rights Act, S.C. 1976-77, c. 33, s.
36.1(7) (as added by S.C. 1984, c. 21, s. 73).
Canadian Security Intelligence Service Act, S.C. 1984, c.
21, ss. 2, 13(1), 29, 30(2)(a), 34, 37, 38(c)(î), 39(1),
(2),(3), 42, 45, 46, 47, 48, 49, 50, 52, 73, 74, 75, 79,
80, 81, 82, 83, 84, 85.
Citizenship Act, S.C. 1974-75-76, c. 108, s. 17.1(5) (as
added by S.C. 1984, c. 21,s. 75).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 2,
18.
Financial Administration Act, R.S.C. 1970, c. F-10, ss.
5(1)(e), 7(7).
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 39(8)(a)
(as added by S.C. 1984, c. 21, s. 80), 82.1(6)(a) (as
added idem, s. 84).
Public Service Employment Act, R.S.C. 1970, c. P-32, ss.
5(a), 6(1), 8.
Public Service Security Inquiry Regulations,
SOR/75-196.
Rules of Procedure of the Security Intelligence Review
Committee in Relation to its Function under Para
graph 38(c) of the Canadian Security Intelligence Ser
vice Act, March 9, 1985, RR. 1, 17-29.
CASES JUDICIALLY CONSIDERED
APPLIED:
Reg. v. Barnet London Borough Council, Ex parte Nilish
Shah, [1983] 2 W.L.R. 16 (H.L.); Carrington v. Therm-
A-Stor Ltd., [1983] 1 W.L.R. 138 (C.A.); Lor-Wes
Contracting Ltd. v. The Queen, [1986] 1 F.C. 346
(C.A.); Christ's Hospital Governors, Rex v. Ex parte
Dunn, [1917] 1 K.B. 19; Myer Queenstown Garden Plaza
Pty. Ltd. and Myer Shopping Centres Pty. Ltd. v. Corpo
ration of the City of Port Adelaide and the Attorney-
General (1975), 11 S.A.S.R. 504 (S.C.).
REFERRED TO:
Canadian National Railway Co. v. Canada (Canadian
Human Rights Commission), [ 1987] 1 S.C.R. 1114.
AUTHORS CITED:
Canada, Commission of Inquiry Concerning Certain
Activities of the Royal Canadian Mounted Police,
Second Report: Freedom and Security under the Law,
Vol. 2, August 1981. Ottawa: Minister of Supply and
Services, 1981.
Canada, House of Commons, Standing Committee on
Justice and Legal Affairs, Evidence, Issue no. 15
(April 17, 1984), at p. 6 and Issue no. 28, at p. 58.
Canada, House of Commons Debates, Vol. 23, 1st Sess.,
32nd Parl. 32 Eliz. II, 1983, at p. 26073.
Canada, House of Commons Debates, Vol. II, 2nd Sess.,
32nd Parl. 33 Eliz. II, 1984, at pp. 1272, 1273, 1275.
Driedger, E. A. Construction of Statutes, 2nd ed.
Toronto: Butterworths, 1983.
COUNSEL:
David J. Jewitt and Sean McGee for
applicant.
L. P. Chambers, Q.C. and Yves Joly for
respondent.
Simon Noël for Canadian Security Intelli
gence Review Committee.
SOLICITORS:
Nelligan/Power, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
Noël, Décary, Aubry & Associés, Hull
(Quebec), for Canadian Security Intelligence
Review Committee.
The following are the reasons for judgment
rendered in English by
STONE J.: This is an application under section
28 of the Federal Court Act [R.S.C. 1970 (2nd
Supp.), c. 10] to review and set aside a decision of
the Deputy Minister of Agriculture dated June 4,
1986 denying the applicant a security clearance
for the purposes of employment as a Project Plan
ning Officer in the International Affairs Director
ate of Agriculture Canada. The Security Intelli-
gence Review Committee, established under the
Canadian Security Intelligence Service Act, S.C.
1984, c. 21 ("the Act"), requested and was grant
ed standing by this Court to participate in the
argument on points relating to its jurisdiction and
procedure. I shall refer to it throughout as the
"intervenant".
BACKGROUND
The Employment Opportunity
The situation which led to the decision that we
are asked to review arose in this way. In June of
1984, the applicant was the successful candidate
for the position in question, and as a result it was
offered to him upon terms contained in a letter
from Agriculture Canada dated June 25 of that
year, one of which reads:
Due to the confidential nature of the duties of this position, a
security clearance at the SECRET level is required. Your effec
tive date is October 1, 1984 but this date cannot be confirmed
until the security clearance is received. [Case, page 6.]
The Security Investigation
In consequence of that requirement, a security
investigation was initiated by Agriculture Canada.
To assist, the applicant completed a "Personal
History Form", dated June 25, 1984, which con
tained information of a personal nature including
details of his occupation during the previous ten-
year period. Question 12 on the form read:
12. Have you ever been dismissed or asked to resign from any
position?
and called for a "yes" or "no" answer, together
with particulars in the case of a "yes" answer. To
that question the applicant gave a "yes" answer
and added the words: "CIDA, January 1974". On
the same day, Mr. D. H. O'Grady, Departmental
Security Officer at Agriculture Canada, referred
the matter to the Royal Canadian Mounted Police
for a "records check" at the "SECRET" level (Case,
page 163).
The same or following day, the applicant called
on Mr. O'Grady and indicated a desire to change
the answer he had given to question 12. As Mr.
O'Grady put it in his evidence before the interve-
nant, "Mr. Thomson came in and explained to me
that he would like to add to that particular ques
tion, make a change in it, in other words; and he
explained that back in 1974 he had, for lack of a
better expression, a problem with CIDA and he had
been asked to resign" (Case, page 49). Mr.
O'Grady went on to explain that the applicant
"was very forthright in telling me exactly what
had taken place with CIDA at the time, I don't
want to put words in his mouth, but it seems to me
he told me that he was suspected of leaking a
particular document while he was with CIDA, a
fact which he denied but nonetheless rather than
cause problems for his family and whatever might
come of it, he resigned his position" (Case, pages
49-50). The applicant then supplemented his
answer to question 12 with the words: "For details,
please contact me at" two different telephone
numbers. As a consequence of this information,
Mr. O'Grady sent a fresh request to the Royal
Canadian Mounted Police asking that a field
investigation instead of a records check be con
ducted at the "TOP SECRET" level. As was
acknowledged by Mr. O'Grady in his evidence
before the intervenant, this latter requirement was
erroneous. He also explained, however, that the
error did not change "the implication of the inves
tigation" (Case, page 52) because it is "the gravity
of the document that you are attempting to pro
tect" in deciding whether to make a "SECRET" or
a "TOP SECRET" check (Case, page 55).
In response to a request from Agriculture
Canada, the applicant actually reported to work on
October 1, 1984, notwithstanding that the security
investigation had yet to be completed, but was sent
home on October 16, and told not to return until
the security issues had been resolved.
With the coming into force of the Act, the field
investigation was turned over to the Canadian
Security Intelligence Service ("CSIS") established
under Part I thereof and referred to therein as
"the Service". This type of investigation called for
a screening interview which was carried out by two
representatives of CSIS on January 11, 1985. Mr.
O'Grady was also present.
Denial of Security Clearance
In due course, on March 26, 1985, Agriculture
Canada received a report in the matter from
CSIS, recommending that the applicant not be
placed in a position where he would have access to
assets classified in the national interest (Case,
page 16). The same day, three officers of Agricul
ture Canada, including Mr. O'Grady, met "to
discuss the options available to the Department in
resolving this case", and determined that the only
option available was to deny the security clearance
(Case, page 16). Before formally denying the
clearance, the Deputy Minister referred the CSIS
report to the Assistant Secretary to the Cabinet,
Security and Intelligence, and requested his com
ments on the decision to deny a security clearance
in accordance with Cabinet Directive No. 35,
paragraph 14 (Case, page 16). A short while later,
the Deputy Minister received a telex message from
an official in the Privy Council Office expressing
agreement with that decision. In the sequel, the
Deputy Minister conveyed his decision to the
applicant by letter of April 23, 1985, in which he
said:
As a result of an investigation carried out by the Canadian
Security Intelligence Service, I must advise you that a security
clearance with this Department has been denied. Consequently,
our offer of employment of June 25, 1984 which was condition
al upon your obtaining a security clearance is now rescinded.
Pursuant to Section 42 of the Canadian Security Intelligence
Service Act, Statutes of Canada 1984, Chapter 21, you have
the right to lodge a complaint within thirty (30) days of receipt
of this letter. This complaint should be addressed to the Secu
rity Intelligence Review Committee, Privy Council Office.
[Case, page 21.]
The Complaint
As a result of that denial, the applicant made a
"complaint" to the intervenant as contemplated by
section 42 of the Act, notice of receipt of which
was conveyed by the intervenant to the Deputy
Minister. The significance of that act can only be
truly appreciated by examining the legislation in
some detail.
THE SCHEME OF THE ACT
The Act was assented to on June 28, 1984. In
Part I, provision is made for the establishment of
CSIS, for appointment of a Director thereof, and
for its management, duties and functions. The
following definition of "security assessment" is
contained in section 2:
2. In this Act,
"security assessment" means an appraisal of the loyalty to
Canada and, so far as it relates thereto, the reliability of an
individual;
Among the duties and functions of CSIS is that of
providing security assessments in accordance with
subsection 13(1):
13. (1) The Service may provide security assessments to
departments of the Government of Canada.
Part III of the Act deals with REVIEW, appar
ently in two different senses. By paragraph
30(2)(a), an official called the "Inspector Gener
al" is authorized to monitor compliance by CSIS
with its operational policies, to review its opera
tional activities and to submit required certificates.
The other sense emerges from the provisions which
relate to the duties of the intervenant. Its estab
lishment and composition is provided for in section
34:
34. (1) There is hereby established a committee, to be
known as the Security Intelligence Review Committee, consist
ing of a Chairman and not less than two and not more than
four other members, all of whom shall be appointed by the
Governor in Council from among members of the Queen's
Privy Council for Canada who are not members of the Senate
or the House of Commons, after consultation by the Prime
Minister of Canada with the Leader of the Opposition in the
House of Commons and the leader in the House of Commons
of each party having at least twelve members in that House.
(2) Each member of the Review Committee shall be
appointed to hold office during good behaviour for a term not
exceeding five years.
(3) A member of the Review Committee is eligible to be
re-appointed for a term not exceeding five years.
(4) Each member of the Review Committee is entitled to be
paid, for each day that the member performs duties and
functions under this Act, such remuneration as is fixed by the
Governor in Council and shall be paid reasonable travel and
living expenses incurred by the member in the performance of
those duties and functions.
Every member of the intervenant is required by
section 37 to take "the oath of secrecy" in the
form set out in the Schedule.'
The investigation of a complaint of the kind
which was lodged by the applicant is provided for
in subparagraph 38(c)(i):
38. The functions of the Review Committee are
(c) to conduct investigations in relation to
(i) complaints made to the Committee under sections 41
and 42 of this Act,
The intervenant is granted broad powers pursuant
to subsection 39 (1) to determine its procedures,
and is given access to sensitive information pursu
ant to subsection 39(2) which reads as follows:
39....
(2) Notwithstanding any other Act of Parliament or any
privilege under the law of evidence, but subject to subsection
(3), the Review Committee is entitled
(a) to have access to any information under the control of
the Service or of the Inspector General that relates to the
performance of the duties and functions of the Committee
and to receive from the Inspector General, Director and
employees such information, reports and explanations as the
Committee deems necessary for the performance of its duties
and functions; and
(b) during any investigation referred to in paragraph 38(c),
to have access to any information under the control of the
deputy head concerned that is relevant to the investigation.
(3) No information described in subsection (2), other than a
confidence of the Queen's Privy Council for Canada in respect
of which subsection 36.3(1) of the Canada Evidence Act
applies, may be withheld from the Committee on any grounds.
Sections 41-46 of the Act provide for "Com-
plaints". I refer particularly to sections 42, 45 and
46:
42. (1) Where, by reason only of the denial of a security
clearance required by the Government of Canada, a decision is
made by a deputy head to deny employment to an individual or
to dismiss, demote or transfer an individual or to deny a
promotion or transfer to an individual, the deputy head shall
send, within ten days after the decision is made, a notice
informing the individual of the denial of the security clearance.
(2) Where, by reason only of the denial of a security clear
ance required by the Government of Canada to be given in
respect of an individual, a decision is made to deny the
individual or any other person a contract to provide goods or
services to the Government of Canada, the deputy head con
' I, , swear that I will not, without due authority,
disclose or make known to any person any information acquired
by me by reason of the duties performed by me on behalf of or
under the direction of the Canadian Security Intelligence Ser
vice or by reason of any office or employment held by me
pursuant to the Canadian Security Intelligence Service Act. So
help me God.
cerned shall send, within ten days after the decision is made, a
notice informing the individual and, where applicable, the other
person of the denial of the security clearance.
(3) The Review Committee shall receive and investigate a
complaint from
(a) any individual referred to in subsection (1) who has been
denied a security clearance; or
(b) any person who has been denied a contract to provide
goods or services to the Government of Canada by reason
only of the denial of a security clearance in respect of that
person or any individual.
(4) A complaint under subsection (3) shall be made within
thirty days after receipt of the notice referred to in subsection
(1) or (2) or within such longer period as the Review Commit
tee allows.
45. A complaint under this Part shall be made to the Review
Committee in writing unless the Committee authorizes
otherwise.
46. The Review Committee shall, as soon as practicable
after receiving a complaint made under section 42, send to the
complainant a statement summarizing such information avail
able to the Committee as will enable the complainant to be as
fully informed as possible of the circumstances giving rise to
the denial of the security clearance and shall send a copy of the
statement to the Director and the deputy head concerned.
The definition of "deputy head" appearing in sec
tion 29 of the Act, plainly embraces the Deputy
Minister.
The procedure laid down by the Act for the
investigation of a complaint and the powers and
duties of the intervenant in connection therewith,
are set forth in sections 47-50:
47. Before commencing an investigation of a complaint
referred to in paragraph 38(c) other than an investigation
under section 41, the Review Committee shall notify the Direc
tor, and where applicable, the deputy head concerned of its
intention to carry out the investigation and shall inform the
Director and the deputy head of the substance of the complaint.
48. (1) Every investigation of a complaint under this Part
by the Review Committee shall be conducted in private.
(2) In the course of an investigation of a complaint under
this Part by the Review Committee, the complainant, deputy
head concerned and the Director shall be given an opportunity
to make representations to the Review Committee, to present
evidence and to be heard personally or by counsel, but no one is
entitled as of right to be present during, to have access to or to
comment on representations made to the Review Committee by
any other person.
49. In the course of an investigation of a complaint under
this Part, the Review Committee shall, where appropriate, ask
the Canadian Human Rights Commission for its opinion or
comments with respect to the complaint.
50. The Review Committee has, in relation to the investiga
tion of any complaint under this Part, power
(a) to summon and enforce the appearance of persons before
the Committee and to compel them to give oral or written
evidence on oath and to produce such documents and things
as the Committee deems requisite to the full investigation
and consideration of the complaint in the same manner and
to the same extent as a superior court or record;
(b) to administer oaths; and
(c) to receive and accept such evidence and other informa
tion, whether on oath or by affidavit or otherwise, as the
Committee sees fit, whether or not such evidence or informa
tion is or would be admissible in a court of law.
Finally, section 52 of the Act requires the
intervenant, on completion of its investigation, to
make a report in the following terms:
52. (1) The Review Committee shall,
(a) on completion of an investigation in relation to a com
plaint under section 41, provide the Minister and the Direc
tor with a report containing the findings of the investigation
and any recommendations that the Committee considers
appropriate; and
(b) at the same time as or after a report is provided pursuant
to paragraph (a), report the findings of the investigation to
the complainant and may, if it thinks fit, report to the
complainant any recommendations referred to in that
paragraph.
(2) On completion of an investigation in relation to a com
plaint under section 42, the Review Committee shall provide
the Minister, the Director, the deputy head concerned and the
complainant with a report containing any recommendations
that the Committee considers appropriate, and those findings of
the investigation that the Committee considers it fit to report to
the complainant.
Part V of the Act contains a number of transi
tional provisions as well as several consequential
and related amendments to other statutes includ
ing the Canadian Human Rights Act [S.C. 1976-
77, c. 33], the Citizenship Act [S.C. 1974-75-76, c.
108] and the Immigration Act, 1976 [S.C. 1976-
77, c. 52], as appears in sections 73-74, 75 and
79-85 respectively.
THE INTERVENANT'S INVESTIGATION
Soon after receiving the "complaint", the
intervenant set about to investigate the matter. To
that end, it drew the attention of the Deputy
Minister to its Rules of Procedure 2 and reminded
him of his "right to make representations ...
either in writing or orally during the hearing"
(Case, page 39). It also requested information of
him in order to send to the applicant the statement
required by section 46 of the Act. The full text of
the section 46 statement is entitled "Statement of
Circumstances Giving Rise to the Denial of a
Security Clearance to Robert Thomson by the
Deputy Head of Agriculture Canada", and reads:
The Review Committee has ascertained that after an investiga
tion, including a personal interview with you, csts provided
Agriculture Canada with a security assessment recommending
that you be denied a security clearance on the basis of, among
other things, the following information:
— that you may have revealed the classified contents of a
message from the Canadian Ambassador in Santiago to the
Department of External Affairs in Ottawa in 1973;
— that you revealed the contents of a classified telex to a
Member of Parliament in 1973 and that you at first denied
knowing the Member of Parliament;
— that you refused to name the person with whom you said you
had discussed the contents of the classified telex (subsequently
shown to be a fake telex);
— that by your own admission you transmitted letters in a
clandestine fashion to a recipient in Guyana;
— that you have maintained contact, in a clandestine manner,
with officials and/or agents of foreign governments and offered
to provide classified information on at least one known occasion
to them.
Upon being so informed, the deputy head decided that your
reliability was not such as to warrant your being entrusted with
classified information. Consequently, your security clearance
was denied. [Case, page 40.]
THE INTERVENANT'S HEARING
The hearing before the intervenant commenced
on August 13, 1985, continued on October 9 and
concluded November 7 of that year. Apart from a
2 Rules of Procedure of the Security Intelligence Review
Committee in Relation to its Function under Paragraph 38(c)
of the Canadian Security Intelligence Service Act, were adopt
ed by the intervenant on March 9, 1985. Rule 1 defines a
"party" to mean, inter alia, a complainant under section 42 of
the Act as well as the Director and the deputy head concerned.
The Rules lay down a detailed procedure relating to complaints
under section 42 of the Act (Rules 17-29), and appear to be
designed to ensure that all procedural safeguards set out in the
Act are afforded to all parties concerned with the investigation
of a section 42 complaint, and the proper making of the report
required by subsection 52(2).
partial transcript of Mr. O'Grady's testimony (to
which I have already referred), the only source of
information of what actually transpired at the
hearing is to be found in the report of April 9,
1986, which the intervenant submitted to the
Deputy Minister by letter of the same date (Case,
pages 81-97) pursuant to subsection 52(2) of the
Act.
The report reveals that the intervenant consisted
of two members, that the applicant was present
with his counsel, and that Agriculture Canada and
the intervenant were represented by separate coun
sel. The "Introduction" to the report contains the
following statement:
The respondent, the Deputy Minister of Agriculture Canada,
was represented by Mr. Patrick O'Grady, the Departmental
Security Officer. Mr. O'Grady testified that the Deputy Minis
ter had taken a decision to deny the complainant a security
clearance solely on the basis of the report and recommendations
provided to him by csis following its investigation of Mr.
Thomson.
Consequently, during the oral hearing phase of the Commit
tee's investigation, the respondent was represented by counsel
for csis, and testimony in support of the decision to deny a
security clearance to Mr. Thomson was provided exclusively by
csis. [Case, page 83.]
The intervenant went on to indicate the extent of
its investigation:
During the investigation, which included three days of oral
hearings, we examined the events and allegations set out below
in the light both of "threats to the security of Canada" as
defined in section 2 of the Act, and of the terms "loyalty" and
"reliability" as they are referred to in the Act. [Case, page 85.]
Each of the allegations made against the appli
cant, as delineated in the section 46 statement,
were then taken up under separate headings, viz.
"telex leaks", "dishonesty", "CIDA information",
"clandestine communications", "Grenada",
"clandestine meeting" and "clandestine contacts".
The Committee's examination of each is followed
by a statement commenting on its merits in the
light of the evidence adduced. Only with respect to
the "telex leaks" and "dishonesty" did the interve-
nant comment in any way unfavourably to the
applicant. As to the "telex leaks", the evidence
disclosed that an authentic telex, as well as a fake
telex from the Canadian Ambassador in Santiago,
Chile, were leaked to a member of Parliament,
leading the intervenant to find (Case, page 86):
We believe that the actions taken by Mr. Thomson in 1973
were wrong. However, since these events took place 12 years
ago, they do not, alone, provide sufficient grounds to deny Mr.
Thomson a security clearance now.
As to the "dishonesty" allegation, the intervenant
noted that during the screening interview of Janu-
ary 11, 1985, the applicant had denied leaking the
authentic telex but not the "fake" telex (which
had had the effect of identifying him as the person
who had leaked the authentic telex). It was only
when the CSIS investigators confronted the appli
cant with this evidence that he admitted his
involvement. In this regard, the intervenant stated
(Case, page 88):
We found this aspect of the investigation particularly difficult.
Certainly, as a matter of course, employees seeking a security
clearance should be expected to be honest with those officials
charged with carrying out the required investigation. Yet,
perhaps it should not be surprising that individuals who have
committed acts which they believe might leave them open to
criminal prosecution would hesitate to admit such acts. In any
event, in this case, while acknowledging that Mr. Thomson was
not forthright during the interview, we conclude that this does
not, of itself, show him to be chronically untruthful.
Toward the end of the report are found summa
ries of the position taken both by Agriculture
Canada and by the applicant. The intervenant
accepted the following testimony of one of the
CSIS investigators as best representing the
respondent's case:
... I'm only concerned about whether or not the affinity he
shows for causes or persons are such that, if the interests of the
Canadian government became a counterpoint to what he
believed in more strongly, then those assets would be in jeop
ardy. That is my concern, not what he believes . .. what I am
concerned is that, given this totality of circumstances, I am not
satisfied that, if the situation arose again, he would not do the
same thing. If he considered the cause that he was espousing at
that particular moment in time was more important than the
Government of Canada's interest in the documentation that he
was being asked to safeguard, that he would not do the same
thing again.
... I said the bottom line with all this information is whether or
not the causes that he espouses are higher in his own mind than
his loyalty to the Canadian government. [Case, page 95.]
The applicant's response is recited by the
intervenant:
I am older, more self-confident, I would be better able to deal
with it within the Agency. At CIA, I was insecure. I was in a
junior position. I didn't think there was anything I could do
about it. Now, I would express my outrage at higher levels in
the Department, or even in the government. [Case, page 96.]
THE INTERVENANT'S FINDINGS AND
RECOMMENDATION
Finally, the findings and recommendation of the
intervenant are set forth as follows, at pages 15-16
of the report:
Findings
We find that, with one exception, the allegations concerning
Mr. Thomson's activities since 1973 are not supported by the
evidence. The exception is that Mr. Thomson was not forth
right in his interview with the csis investigator when he was
questioned in 1985 about the unauthorized release of telexes in
1973.
There is no doubt that throughout the period from 1973 until
the present, Mr. Thomson associated with officials and agents
of Caribbean and Latin American governments. We believe
that the positions he held during those years made this inevi
table, and the evidence presented has not shown that these
relationships were inimical in any way to Canada's security
interests. Nor was there evidence to show that Mr. Thomson
released or sought to release classified material to any unau
thorized person. Indeed, for most of the period in question, Mr.
Thomson could not have done so since he did not have access to
such information. Finally, we consider the thesis that Mr.
Thomson took part in an intelligence "meet" at the Ottawa bus
station, to be without foundation.
It remains that Mr. Thomson admitted to the unauthorized
release of classified information in 1973 on two separate (it
seemed) occasions. This release was not, it should be noted, to a
foreign power, but to a Canadian M.P. It was, nevertheless, a
serious breach of trust, and the question which must be
answered is: would Mr. Thomson do such a thing in the future
if circumstances led to his becoming, once again, emotionally
engaged?
The answer to that question must be entirely subjective. We
believe that since the incidents took place some twelve years
ago when Mr. Thomson was both less experienced and less
mature, his actions then cannot, in the absence of other evi
dence, lead to the conclusion that, in similar circumstances, he
would act in the same way now or in the future. There was no
other evidence which would have led us to that conclusion.
We find, therefore, that Mr. Thomson would be unlikely to
release classified information if he were once again employed in
a position with access to such material.
Recommendation
We recommend that the Deputy Minister of Agriculture
Canada grant Mr. Thomson a Secret security clearance so that
he may continue his career in the position offered to him in
1984. [Case, pages 96-97.]
Notwithstanding this recommendation, the
Deputy Minister informed the applicant by letter
of June 4, 1986 "that the decision to deny security
clearance is maintained" (Case, page 102). In so
doing, he appears to have proceeded on the basis
that he was not legally bound by that recommen
dation (Case, page 98).
THE ISSUES
In his memorandum of points of argument, the
applicant alleges four different errors of law on the
part of the Deputy Minister. It is not necessary to
recite them although it will become desirable to
examine their underlying basis in discussing the
issues which I think require this Court's attention.
Put shortly, this basis is that, having regard to the
scheme of the Act and to its overall purpose, the
Deputy Minister was obliged to act upon the find
ings and recommendation of the intervenant and,
accordingly, that he erred in law by denying a
security clearance. A fifth submission, based upon
an alleged violation of the "freedom of expression"
and "freedom of association" guaranteed by para
graphs 2(b) and (d) respectively of the Canadian
Charter of Rights and Freedoms [being Part I of
the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.)], was not pursued.
The respondent, on the other hand, takes the basic
positions that this Court is without jurisdiction
under section 28 of the Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, because the decision to
deny the security clearance was made pursuant to
the Royal prerogative as expressed in Cabinet
Directive No. 35 and that the recommendation in
question is not binding in any event.
In my view, the central issues raised before us
on this appeal may be stated as follows:
(a) If the decision to deny the security clear
ance was made in exercise of the Royal preroga
tive as expressed in Cabinet Directive No. 35,
does this Court possess jurisdiction under sec
tion 28 of the Federal Court Act to review and
set that decision aside?
(b) Is the Deputy Minister of Agriculture
obliged to grant the security clearance pursuant
to the "recommendation" contained in the
report of the intervenant?
(c) If the Deputy Minister is obliged to grant
the security clearance in accordance with that
"recommendation", does this Court possess
jurisdiction under section 28 of the Federal
Court Act to review and set aside his refusal to
do so on a basis that would require him to
implement that recommendation?
DISCUSSION
Jurisdiction
Subsection 28 (1) of the Federal Court Act
reads:
28. (1) Notwithstanding section 18 or the provisions of any
other Act, the Court of Appeal has jurisdiction to hear and
determine an application to review and set aside a decision or
order, other than a decision or order of an administrative
nature not required by law to be made on a judicial or
quasi-judicial basis, made by or in the course of proceedings
before a federal board, commission or other tribunal, upon the
ground that the board, commission or tribunal
(a) failed to observe a principle of natural justice or other
wise acted beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order, whether or
not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of
fact that it made in a perverse or capricious manner or
without regard for the material before it.
The defined term "federal board, commission or
other tribunal" appears in section 2 of that statute:
2....
"federal board, commission or other tribunal" means any body
or any person or persons having, exercising or purporting to
exercise jurisdiction or powers conferred by or under an Act
of the Parliament of Canada, other than any such body
constituted or established by or under a law of a province or
any such person or persons appointed under or in accordance
with a law of a province or under section 96 of The British
North America Act, 1867;
Counsel for the respondent asserts that the
power to appoint and stipulate the terms and
conditions of appointment to a position with the
Department of Agriculture, is governed by the
Royal prerogative.' I am satisfied that these
powers include any determination of a need for
2 The exclusive power vested in the Public Service Commis
sion to make appointments to the Public Service under the
Public Service Employment Act, R.S.C. 1970, c. P-32, may be
vested in a deputy head of a Department by delegation of the
Commission (see paragraph 5(a), subsection 6(1) and section
8). In the case of the Department of Agriculture, such delega
tion appears to have been made. See Staffing Manual, Vol. 11,
Delegation of Staffing Authority, etc. (Case, p. 140). and see
also paragraph 5(1)(e) of the Financial Administration Act,
R.S.C. 1970, c. F-10.
security clearance as a prerequisite to employment
and that, traditionally, the granting or withholding
thereof was a matter falling within the Royal
prerogative. Counsel further submits that this tra
ditional position has not been affected in any way
by the Act and, particularly, that the relevant
powers of the intervenant under the Act have no
bearing whatever upon that position. This depend
ence upon the continued application of the Royal
prerogative as expressed in Cabinet Directive No.
35 requires a close examination of the document.
That Directive was adopted in 1963, although
its lineage traces back somewhat earlier in time. 4
It is entitled "Security in the Public Service of
Canada" and is divided under three major head
ings, namely, "POLICY", "PROCEDURE" and
"METHODS". Until 1978, it remained a confiden
tial document but was declassified in that year
during the course of public hearings and became
an exhibit before the Commission of Inquiry Con
cerning Certain Activities of the Royal Canadian
Mounted Police (see Second Report, Vol. 2, Free
dom and Security under the Law, August 1981, at
page 783). Counsel for the respondent drew our
attention to the following paragraphs of this Direc
tive as having a special bearing on the issues
before the Court:
4 Cabinet Directives touching upon the question of security
as regards appointments to the public service are as follows:
Cabinet Directive No. 4, March 5, 1948, Cabinet Directive No.
4A, April 6, 1948, Cabinet Directive No. 24, October 16, 1952,
Cabinet Directive No. 29, December 21, 1955, and Cabinet
Directive No. 35, December 27, 1963. A Booklet published by
the Privy Council Office in November 1956 and the Public
Service Security Inquiry Regulations of March 27 1975 [SOR/
75-196] adopted pursuant to subsection 7(7) of the Financial
Administration Act R.S.C. 1970 c. F-10, also appear to be
relevant.
On June 18, 1986, the Treasury Board issued a "Security
Policy of the Government of Canada", replacing the policy set
out in the November 1956 Booklet and Cabinet Directive No.
35 relating to security screening. Although aspects of this latter
document were relied on by both the intervenant and the
respondent to support their respective submissions, I do not
think they are of much assistance in view of the fact that this
new policy was adopted subsequent to the enactment of the Act
and, no doubt, with an eye to whatever interpretation its
framers may have chosen to place on the provisions which this
Court is required to interpret.
POLICY
1. Security in the public service of Canada is essentially a part
of good personnel administration, and therefore it is the respon
sibility of each department and agency. The security of classi
fied information in the possession of a department or agency
may be placed in jeopardy either by persons who may be
disloyal to Canada and her system of government or by •persons
who are unreliable because of defects in their character.
5. In addition to loyalty, reliability is essential in any person
who is to be given access to classified information. A person
may be unreliable for a number of reasons that do not relate to
loyalty. To provide as much assurance of reliability as possible
persons described in paragraph 6 below may not be permitted
to have access to classified information, unless after careful
consideration of the circumstances, including the value of their
services, it is judged that the risk involved appears to be
justified.
6. The persons referred to in paragraph 5 above are:
a) a person who is unreliable, not because he is disloyal,
but because of features of his character which may lead
to indiscretion or dishonesty, or make him vulnerable to
blackmail or coercion. Such features may be greed,
debt, illicit sexual behaviour, drunkenness drug addic
tion, mental imbalance, or such other aspect of charac
ter as might seriously affect his reliability;
b) a person who, through family or other close continuing
relationship with persons who are persons as described
in paragraphs 3(a) to (e) above, is likely to be induced,
either knowingly or unknowingly, to act in a manner
prejudicial to the safety and interest of Canada. It is not
the kind of relationship, whether by blood, marriage or
friendship, which is of primary concern. It is the degree
of and circumstances surrounding such relationship, and
most particularly the degree of influence that might be
exerted, which should dictate a judgement as to reliabili
ty, a judgement which must be taken with the utmost
care; and
c) a person who, though in no sense disloyal or unreliable,
is bound by close ties of blood or affection to persons
living within the borders of such foreign nations as may
cause him to be subjected to intolerable pressures.
[Emphasis added.]
7. In addition it must be recognized that there may be a serious
risk to security in employing or permitting to be employed
persons such as those described in paragraphs 3 or 6 above:
a) In certain positions in industrial firms and related estab
lishments involved in or engaged upon the production or
study of classified defence equipment which requires
security protection; or
b) in positions in government organizations engaged in
work of a nature vital to the national security which,
although they do not normally involve access to classi
fied information, may afford their incumbents oppor
tunities to gain unauthorized access to such information.
8. To carry out their responsibility for the safekeeping of the
secrets of the Government of Canada and her allies, depart
ments and agencies must first obtain sufficient information
about a person to be given access to these secrets in order that a
reasonable judgement might be made as to his or her loyalty
and reliability. In making this administrative judgment, it must
always be borne in mind that, while the interests of the national
security must take precedence where there is a reasonable
doubt, the safeguarding of the interests of the individual is also
essential to the preservation of the society we seek to protect.
Information bearing on the security status of an employee will
be treated as confidential. [Emphasis added.]
PROCEDURE
9. The following procedures by which this policy is to be
implemented are designed to provide that the most careful
screening possible be given, particularly to persons who will
have access to highly classified information. It is the continuing
responsibility of each government department and agency to
ensure that its security remains unimpaired.
10. Information about persons who are being considered for
access to classified information must be obtained at least from
the persons themselves, from referees named by the persons,
and from investigations conducted by authorized investigative
agencies. Departments and agencies will inform persons who
are being considered for access to classified information of the
reasons for seeking background information about them, and to
explain to them the dangers to themselves as well as to the
national security in their attempting to conceal any information
which may have a bearing on the degree of confidence that can
be reposed in them.
11. The functions of an investigative agency are to conduct
promptly and efficiently such investigations as are requested by
departments or agencies to assist them in determining the
loyalty and reliability of the subject of investigation; and to
inform departments and agencies of the results of their investi
gations in the form of factual reports in which the sources have
been carefully evaluated as to the reliability of the information
they have provided.
12. On the basis of these reports and such other pertinent
information as has been obtained from the person concerned,
from the character references which he has given, and from
such other sources of information as may have been utilized,
the employing department or agency will arrive at a considered
judgement of the person's loyalty and reliability, and of the
degree of confidence that can be reposed in him to carry out
safely and efficiently the duties to be performed.
13. If a favourable determination is made, the department or
agency may grant a security clearance to the level required for
the efficient performance of the duties of the position con-
cerned. If, on the other hand, there is in the judgement of the
deputy minister of the department or the head of agency
concerned a reasonable doubt as to the degree of confidence
which can be reposed in the subject, the granting of a security
clearance will be delayed until the doubt has been resolved to
the satisfaction of the deputy minister or the head of agency.
14. Where an applicant for employment in the public service,
as opposed to a person already employed, is being considered
for appointment to a position requiring access to classified
information and doubt has arisen as to his suitability for such
access, the following courses of action may be taken with a view
to resolving that doubt:
a) further specific investigation may be requested of an
authorized investigative agency; or
b) the department or agency may at any time seek the
advice of the interdepartmental Security Panel.
METHODS
21. Security screening of applicants to the public service will
be initiated by the Civil Service Commission, or by depart
ments and agencies in the case of persons not employed under
the Civil Service Act. Where persons already employed in a
department or agency are to be given access to classified
information, security screening will be initiated by the depart
ment or agency concerned.
25. Within the policies and procedures set out above, a security
assessment and clearance will be made by the following means.
These represent security criteria and methods which are con
sistent with present investigative services available interdepart-
mentally; they are minimum standards and do not limit in any
way the right of the armed forces to conduct field checks,
through their own resources, of personnel employed with or on
behalf of the Department of National Defence.
(iv) Responsibility for granting clearances The deputy
head of department or agency will be responsible for
granting or withholding a security clearance and will
assume a continuing responsibility for a person's
access to Top Secret, Secret and Confidential
information.
The respondent's attacks on the existence of
jurisdiction under section 28 of the Federal Court
Act may be summarized as follows:
(a) the Deputy Minister cannot be regarded as a
"federal board, commission or other tribunal"
exercising jurisdiction or powers conferred by
or under an Act of Parliament, as that term is
defined in section 2 thereof, because in decid
ing to deny the security clearance he exercised
powers derived from the Royal prerogative as
expressed in Cabinet Directive No. 35;
(b) assuming the Deputy Minister was a "federal
board, commission or other tribunal", his deci
sion was an administrative rather than a judi
cial one that was neither required to be made
on "a judicial or quasi-judicial basis" nor "by
law", in that it was required to be made and
was in fact made in exercise of the Royal
prerogative as expressed in Cabinet Directive
No. 35.
Finally, in the event that the decision of the
Deputy Minister should be found to be reviewable
under section 28 of the Federal Court Act, the
respondent contends that the Deputy Minister did
not (a) fail to observe a principle of natural justice
or otherwise act beyond or refuse to exercise his
jurisdiction, (b) err in law in making his decision,
or (c) base his decision on an erroneous finding of
fact that was made in a perverse or capricious
manner or without regard for the material before
him. With respect to each, counsel for the respond
ent once again points to Cabinet Directive No. 35,
stressing particularly the "reliability" factor which
the Deputy Minister considered to be decisive, as
shown by paragraphs 18 and 19 of his affidavit of
September 5, 1986:
18. In exercise of my responsibility vested in me pursuant to
subparagraph 25 (iv) of the said Cabinet Directive No. 35 for
granting or withholding a security clearance to a person in my
Department it was incumbent upon me to make such a decision
in Mr. Thomson's case. By paragraphs 5 and 6 of the said
Cabinet Directive No. 35 it was essential that I carefully
consider, in addition to factors of loyalty, whether Mr. Thom-
son was reliable or exhibited aspects of character as might
seriously affect his reliability, and by paragraph 12 thereof I
was directed to arrive at a considered judgment as to Mr.
Thomson's loyalty and reliability and as to the degree of
confidence that could be reposed in him to carry out safely and
efficiently the duties to be performed on the basis of informa
tion obtained from all available sources.
19. On the basis of the said report from the Canadian Security
Intelligence Service, even as commented upon or explained in
the said report from the Security Intelligence Review Commit
tee it appeared to me that Mr. Thomson exhibited traits of
character indicative of adhering to honesty and forthrightness
only to the degree that it furthered or was in accord with his
interests, causes or beliefs: in other words, that he appeared to
put his own interests, causes or beliefs ahead of his loyalty to
his employer, as well as to Canada, raising reasonable doubts in
my mind that he could be trusted with confidential information
and otherwise be relied upon to carry on his duties of employ
ment loyally and efficiently in his employer's, as well as
Canada's interests. [Case, pages 122-123.]
It seems to me that we should first answer the
question raised in the second of the three issues
which I have defined above before deciding wheth
er this Court has jurisdiction in the sense raised by
either the first or third issue. If the answer to that
question be "no", it would be necessary to consider
whether this Court has jurisdiction to review the
decision. If, on the other hand, the answer be
"yes", it would be necessary to decide whether the
Deputy Minister's decision may be made the sub
ject of a judgment of this Court under section 28
of the Federal Court Act.
Nature of Intervenant's Recommendation
The applicant contends that the Deputy Minis
ter is bound to implement the recommendation.
This view of Parliamentary intention was fully
supported by the intervenant whose submissions
illustrate the argument most graphically. Counsel
for the intervenant argues that, with the coming
into force of the Act, there now exists a three-level
system for dealing with a security clearance for the
purpose of employment with the Government of
Canada. Initially, it is for the Deputy Minister
alone to decide whether to grant or to deny a
security clearance in accordance with Cabinet
Directive No. 35, and for that purpose the Deputy
Minister may obtain from CSIS a "security assess
ment" pursuant to subsection 13(1) of the Act.
The second level consists of the intervenant's inves
tigation triggered by the lodging of a "complaint"
pursuant to section 42 of the Act by an individual
denied a security clearance. The final level calls
merely for the deputy head to give effect to any
recommendation made by the intervenant in conse
quence of its investigation. At this level, it is
argued, there remains no room for the Deputy
Minister to deny the clearance on a ground relied
upon by him in the first place.
Counsel for the respondent takes a directly
opposite view of the Act and of its underlying
purpose. He argues that it does no more than
provide an individual who has been denied employ
ment, by reason of the denial of a security clear
ance, with an opportunity of presenting his case to
an independent committee and of learning the
grounds upon which the clearance was denied.
Subsection 52(2) of the Act, he contends, merely
requires the intervenant to "provide the Minister,
the Director, the deputy head concerned and the
complainant with a report containing any recom
mendations that the Committee considers appro
priate" (the Minister in question being the Solici
tor General of Canada), and in no way impinges
upon the Deputy Minister's authority to decide the
matter in accordance with Cabinet Directive
No. 35. Indeed, he argues, this must be so espe
cially where the decision concerns "reliability", a
matter which can only be assessed by the person
having the responsibility of deciding whether or
not to employ the individual in question.
I agree that the outcome of this application
must very much depend upon the interpretation to
be given the word "recommendations" in subsec
tion 52(2) of the Act. That interpretation, it seems
to me, ought not to be made simply by ripping that
word away from its statutory context and by
adopting a literal meaning e.g. advising, counsel
ling or suggesting a particular course of action. In
his work Construction of Statutes, 2nd ed.
Toronto: Butterworths, 1983, the late E. A.
Driedger expressed the "modern principle" of
statutory construction in this way, at page 87:
Today there is only one principle or approach, namely, the
words of an Act are to be read in their entire context and in
their grammatical and ordinary sense harmoniously with the
scheme of the Act, the object of the Act, and the intention of
Parliament.
That view was very recently cited with approval by
the Supreme Court of Canada in Canadian Na
tional Railway Co. v. Canada (Canadian Human
Rights Commission), [1987] 1 S.C.R. 1114, per
Dickson C.J., at page 1134.
It is not to say that judges may interpret a
statute according to their own view as to policy,
but, as Lord Scarman said in Reg. v. Barnet
London Borough Council, Ex parte Nilish Shah,
[1983] 2 W.L.R. 16 (H.L.), at page 30:
They may, of course, adopt a purposive interpretation if they
can find in the statute read as a whole or in material to which
they are permitted by law to refer as aids to interpretation an
expression of Parliament's purpose or policy.
At the same time, in seeking out the intention of
Parliament I take heed of the advice expressed by
Sir John Donaldson M.R. in Carrington v. Therm-
A-Stor Ltd., [1983] 1 W.L.R. 138 (C.A.), at page
142:
However, the concept that Parliament "must have intended" a
particular result is not without its dangers. If regard is had
solely to the apparent mischief and the need for a remedy, it is
only too easy for a judge to persuade himself that Parliament
must have intended to provide the remedy which he would
himself have decreed if he had had legislative power. In fact
Parliament may not have taken the same view of what is a
mischief, may have decided as a matter of policy not to
legislate for a legal remedy or may simply have failed to realise
that the situation could ever arise. This is not to say that
statutes are to be construed in blinkers or with narrow and
legalistic literalness, but only that effect should be given to the
intentions of Parliament as expressed in the statute, applying
the normal canons of construction for resolving ambiguities or
any lack of clarity.
Counsel for the applicant and for the interve-
nant argue that we should look to the debates of
the House of Commons and to certain evidence
given before a Parliamentary Committee for
assistance in discovering the "mischief' or "evil"
that the Act was designed to correct. Such a use
was made of Parliamentary debates by this Court
in Lor- Wes Contracting Ltd. v. The Queen, [ 1986]
1 F.C. 346 (C.A.), per MacGuigan J., at page 355:
While the rule still remains that legislative history is not
admissible to show the intention of the Legislature directly, the
Supreme Court of Canada has nevertheless increasingly looked
to legislative history for related purposes, not only in constitu
tional cases (Re Anti-Inflation Act, [1976] 2 S.C.R. 373, Re
Objection by Quebec to a Resolution to amend the Constitu
tion, [1982] 2 S.C.R. 793), but also in relation to the interpre
tation of statutes generally. So in R. v. Vasil, [1981] 1 S.C.R.
469, the Court referred to Hansard in order to determine that
Canada adopted not only the text of the British Royal Commis
sion's draft criminal code of 1879 but also its reasons. The
present rule would thus appear to be that Hansard may be
used, like the report of a commission of enquiry, in order to
expose and examine the mischief, evil or condition to which the
Legislature was directing its attention: Morguard Properties
Ltd., supra, at pages 498-499 S.C.R.; 269-270 N.R.
The measure here in question came before the
House of Commons in the form of Bill C-9 when it
received first reading on January 18, 1984, the
responsible Minister being the then Solicitor Gen
eral of Canada, the Honourable Robert Kaplan.
An earlier version, introduced by the Solicitor
General on May 18, 1983 as Bill C-157, also
became the subject of Parliamentary examination
but was superseded by the new Bill. Although the
organization of the old Bill was somewhat differ
ent to that of Bill C-9, the clauses dealing with
"complaints" and the powers and duties of the
intervenant with respect thereto, were retained
without material change and ultimately passed
into law. One major feature, however, was not
present in either Bill. It is the right of a complai
nant, deputy head and the Director pursuant to
subsection 48(2), to "present evidence and to be
heard personally or by counsel" by the intervenant.
There are, I think, statements in the debates of
the House of Commons and in proceedings of the
Parliamentary Committee, that shed some light on
the mischief or evil that was intended to be remed
ied with the adoption of the Act. "The purpose of
this Bill", said the Solicitor General, was "to a
large extent, to provide a new set of guarantees
and controls ... in order to protect the rights of
Canadians against undue interference." 5 He also
indicated that the Act would "(exchange) the
present mandate, established by a Cabinet direc
tive ... for a legislated mandate that can be
changed only by Parliament" and thus represented
"a giant step forward in protecting the rights of
Canadians." 6 The Solicitor General added that the
investigation of the complaints against refusal of a
security clearance "is something new" and that
this "should also be considered a great step for
ward for civil liberties."' He characterized the
procedures first proposed in Bill C-157 for investi
gation of complaints as furnishing an individual
denied a security clearance and employment with
"the opportunity to get the records corrected and
have justice done with respect to his or her case."
5 House of Commons Debates, Vol. II, 2nd Sess., 32nd Parl.
33 Eliz. II, February 10, 1984, at p. 1272.
6 Ibid., at p. 1273.
7 Ibid., at p. 1275.
8 House of Commons Debates, Vol. 23, 1st Sess., 32nd Parl.
32 Eliz. II, June 6, 1983, at p. 26073.
In his evidence before the Parliamentary Commit
tee, the Solicitor General indicated that the pro
posed statute would give the complainant in such a
situation "a recourse". 9
Counsel for the respondent emphasizes the pres
ence of the word "recommendations" in subsection
52(2) in arguing that the Deputy Minister is not
bound by the intervenant's recommendation. He
argues for the literal approach to statutory con
struction. On the other hand, courts have been
unwilling to interpret the word "recommendation"
in that way if the particular statutory scheme in
which it appears points to a different conclusion.
Thus, in Christ's Hospital Governors, Rex v. Ex
parte Dunn, [1917] 1 K.B. 19, Darling J. took that
approach in stating at page 23:
The word "recommendation" is not there used in its ordinary
sense as when one says "I recommend you to do so and so," or
as when a doctor says to his patient "I recommend you to take
a change of air." Although put in the form of a recommenda
tion, the clause really empowers those bodies to say "We
nominate such and such a person, and you must appoint him an
almoner; we cannot put him there ourselves; you are the
governors of the institution and you have the means of includ
ing him in the list." I think that what was in the minds of those
who framed the scheme was something equivalent to a congé
d'élire, which, though in words a permission or invitation to
elect, is really a command to do it. So here a nomination is
called a "recommendation". The most definite language has
not been used, but, as I have said, I think the word "recommen-
dation" is used not in the mild sense, but as really meaning a
nomination.
Again, the Australian case of Myer Queenstown
Garden Plaza Pty. Ltd. and Myer Shopping Cen
tres Pty. Ltd. v. Corporation of the City of Port
Adelaide and the Attorney-General (1975), 11
S.A.S.R. 504 (S.C.), furnishes another illustration
of what I mean. The task facing the Court in that
case was the interpretation to be given the word
"recommendation" in the context of a statute
empowering the Governor to make regulations "on
the recommendation" of a municipal authority or
council. It was argued that the word allowed the
Governor to depart substantially from the recom
mendation once received, but the Court thought
9 Canada, House of Commons, Standing Committee on Jus
tice and Legal Affairs, Evidence, Issue no. 15 (April 17, 1984),
at p. 6 and Issue no. 28, at p. 58.
otherwise. In so deciding, it took account of the
framework provided in the statute for the adoption
of a recommendation, which included (in section
38) a method whereby public objections could be
raised against adoption and the availability of "an
opportunity to appear personnally, or by counsel,
solicitor or agent before the Authority or the
council and to be heard in support of such objec
tions". At page 547, Wells J. noted:
Mr. Johnston pointed to the machinery prescribed by s. 38
and posed this question: Why should the legislature have gone
to such lengths to ensure that the views of the public about
proposed regulations should be thoroughly canvassed and that
those regulations should conform with the provisions and
objects of the authorized development plan, if no more was to
be required of the Governor than that he should not act without
consulting the Council, that he should not act in direct opposi
tion to its advice, and that he should act simply on its instiga
tion? Why invite and consider objections from the relevant
public, and attempt, in advance, to ensure compliance with the
authorized development plan, if such painstaking vigilance is to
be set at naught by an interpretation of s. 36 that enables the
Governor to depart substantially from the recommended draft?
Should not the regulations, when made, therefore, conform
closely with the recommended draft?
In my view, the word "recommendations" in
subsection 52(2) of the Act must be construed
with an eye to the entire statutory scheme for the
investigation of a "complaint" by an individual
denied employment in the public service by reason
of the denial of a security clearance. Certain fea
tures of that scheme impress me as indicating an
intention of Parliament to provide the complainant
with redress rather than with merely an opportu
nity of stating his case and of learning the basis for
the denial. They include the care that was taken to
establish eligibility for appointment to membership
of the intervenant, the manner of selecting and
tenure of office of those appointed (section 34);
the requirement that each member subscribe to an
oath of secrecy (section 37); the requirement that
an adverse decision exist before the intervenant
may commence an investigation (subsection
42(1)); the need for providing all concerned with a
statement, or a copy thereof, "summarizing such
information available to the Committee as will
enable the complainant to be as fully informed as
possible of the circumstances giving rise to the
denial of the security clearance" (section 46); the
requirement that both the Director and the deputy
head be informed of the complaint before it is
investigated (section 47); the opportunity made
available to all concerned "to make representa
tions to the Review Committee, to present evi
dence and to be heard personally or by counsel"
(subsection 48(2)); the broad powers of the
intervenant to summon and enforce the appear
ance of witnesses, and to compel the giving of
evidence on oath and the production of "such
documents and things as the Committee deems
requisite to the full investigation and consideration
of the complaint in the same manner and to the
same extent as a superior court of record", to
administer oaths, and to receive and accept evi
dence or other information, whether on oath or by
affidavit or otherwise (section 50); the extent of
access granted the intervenant to information
"notwithstanding any other Act of Parliament or
any privilege under the law of evidence", and the
proscription against withholding of such informa
tion "on any grounds" unless it be a confidence of
the Queen's Privy Council for Canada to which
subsection 36.3(1) of the Canada Evidence Act
applies [R.S.C. 1970, c. E-10 (as added by S.C.
1980-81-82-83, c. 111, s. 4)] (subsections 39(2)
and (3)).
In my view, the nature of this scheme indicates
a desire by Parliament to provide a means of
making full redress available to a complainant. It
seems to me that a far less elaborate scheme would
have sufficed had Parliament merely intended to
provide means whereby a complainant might state
his case to a third party and be made aware of the
basis for denial of the clearance. The adoption of a
detailed scheme by Parliament, which includes the
obligation for a formal report in which "findings"
and any "recommendations" are to be stated, sug
gests that this latter word was used other than in
its literal sense. Secondly, the details of that
scheme, including, for example, its emphasis on
the need for prior notice, opportunity to be heard,
summoning of witnesses, production of documents,
access to sensitive information, etc., rather sug
gests an intention that the intervenant have the
ability to examine the whole basis on which a
denial rests to ensure such redress as its investiga
tion may indicate. I can find no other acceptable
explanation for arming it with such extensive
powers. Given the lengths to which and the care
with which Parliament dealt with this matter
under the Act, I seriously doubt that it intended
any "recommendations" to be merely advisory or
suggestive. To view the scheme differently would
be somewhat akin to saying that Parliament, like
the mountains, though labouring mightily, brought
forth a mouse. Thirdly, other provisions of the Act
rather suggest that Parliament did not use the
word "recommendations" in its literal sense. Thus,
among the "consequential and related amend
ments" are provisions for the referral of a security
question to investigation by the intervenant in
accordance with the procedures I have already
reviewed, and for the making of a report upon the
completion of an investigation pursuant to the
Canadian Human Rights Act, (subsection 36.1(7)
[as added by S.C. 1984, c. 21, s. 73]), or the
Citizenship Act (subsection 17.1(5) [as added
idem, s. 75]) or the Immigration Act, 1976 (para-
graphs 39(8)(a) [as am. idem, s. 80] and
82.1(6)(a) [as added idem, s. 84] ). It is signifi
cant, I think, that in none of these cases did
Parliament authorize the intervenant to make any
"recommendations" but merely "findings" or
"conclusions" which the ultimate decision-maker
is authorized to "consider".
Obviously, the purpose of the Act goes well
beyond that of protecting the individual interest in
obtaining a security clearance, for it is primarily
directed toward protecting the national interest in
matters of security generally. On the other hand,
the "complaints" procedure under Part III appears
to take that objective into account by ensuring,
especially by the composition and powers of the
intervenant and the requirement for secrecy, that
this interest not be sacrificed. The Act evidently
reflects a careful balancing of the two interests. It
does not address itself directly to the manner in
which the initial decision to deny a clearance is to
be made, entering the picture only subsequent to
that decision and then only after a "complaint"
has been lodged. At that point, in my view, the
question whether a clearance was rightfully denied
is taken away from a deputy head, and is thereaf
ter committed to the determination of the interve-
nant acting in accordance with the procedures laid
down by the Act including the full opportunity of
the deputy head to defend his decision and of
CSIS to defend its advice to the deputy head. I am
satisfied that the entire basis for the denial is thus
opened to investigation including any subjective
assessment of the complainant's reliability that
may be required. As I see it, a deputy head is not
entitled, so to speak, to "re-make" a decision he
has already rendered after the matter has become
the subject of a "complaint" and a "recommenda-
tion".
At the same time, it must be recognized that the
existence of a new circumstance not known to a
deputy head at the time of denial of a security
clearance that becomes the subject of a "com-
plaint" or that arises after an investigation is
completed, might possibly permit the deputy head
to deny a clearance a second time even in the face
of a positive recommendation. The point is not
before us for decision although it was alluded to by
the applicant in argument. It may very well be that
a deputy head would then become entitled to deny
a clearance on account of the new circumstance
and, if so, that the individual concerned would be
entitled to lodge a fresh "complaint" and thereby
obtain the protection which the Act was designed
to afford. If that should be the proper conclusion,
it would mean that a "recommendation" binds
only in so far as it results from the investigation of
the basis of a decision complained against rather
than from some entirely different basis that was
not originally considered by the deputy head.
Jurisdiction Revisited
If I am correct that the Deputy Minister is
bound by the recommendation in question, I must
now take up the third issue which I have defined
above, namely, whether this Court has jurisdiction
under section 28 of the Federal Court Act to
review and set aside the decision whereby he
refused to act in accordance with that recommen
dation. His refusal was obviously based upon a
misconstruction of subsection 52(2), for he clearly
felt free to exercise a discretion that he claimed to
still hold under Cabinet Directive No. 35. In my
opinion, the decision under attack does not fall
within the jurisdiction conferred on this Court by
section 28, because that section does not authorize
us to grant the relief sought, namely, the setting
aside of the second decision and declaring that the
Deputy Minister is bound to follow the recommen
dation. If I am correct in so viewing the recom
mendation, only a purely administrative act, rather
than a decision made on a judicial or quasi-judicial
basis, is required for its implementation. Section
18 of the Federal Court Act vests the Trial Divi-
sion with exclusive original jurisdiction to grant
certain relief including relief by way of certiorari
or mandamus, and it is well established that cer-
tiorari lies to quash a decision of a public official
who acts beyond his jurisdiction and that man-
damus lies to compel the performance of a statu
tory duty. As I see it, that duty arises here because
of the existence of a binding recommendation duly
made in accordance with the Act by Parliament's
instrumentality, the intervenant. In my view, a
refusal or neglect to follow that recommendation is
not something this Court can deal with by any
judgment it is authorized to pronounce under
section 28.
DISPOSITION
In summary,
(a) the Deputy Minister is bound to grant the
security clearance recommended by the
intervenant;
(b) this Court is without jurisdiction under section
28 of the Federal Court Act to review and set
aside the June 4, 1986 decision of the Deputy
Minister denying that clearance.
I would dismiss this application.
HUGESSEN J.: I agree.
DESJARDINS J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.