Docket: T-2252-12
Citation: 2014 FC 206
Ottawa, Ontario, March 3, 2014
PRESENT: The Honorable Madam Justice Kane
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BETWEEN:
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IRINA KOULATCHENKO
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Applicant
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and
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FINANCIAL TRANSACTIONS AND REPORTS ANALYSIS CENTRE OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
Irina Koulatchenko, the applicant, seeks
judicial review pursuant to s. 18.1 of the Federal Courts Act, RSC 1985,
c F-7 of four related decisions made February 27, 2012 by the Director of the
Financial Transactions and Reports Analysis Centre of Canada ("FINTRAC")
which: refused to issue a Top Secret security clearance to her; revoked her Secret
security clearance; revoked her Reliability Status; and, revoked her
appointment to her position with FINTRAC.
[2]
The applicant submits that she was denied procedural
fairness because she was not provided with any notice of the concerns leading
to the denial of her security status and was not provided with an opportunity
to address those concerns before the Director made the final decisions. The
applicant further submits that the decisions were not reasonable as they were
so devoid of reasons that the Court could not be in a position to determine the
reasonableness of the Director’s decisions. The applicant submits that all four
decisions, including the decision to terminate her employment, attract a duty
of procedural fairness.
[3]
The applicant seeks an order quashing all four
decisions and remitting the decisions back to the Director of FINTRAC for a
re-determination after providing her with notice of the nature of FINTRAC’s
security concerns and the opportunity to respond to those concerns. The
applicant also seeks to be compensated in wages owed from the date of
termination to the date of judgment on the basis that the termination decision
was an administrative decision and, because of the breach of procedural
fairness, it is void ab initio.
[4]
The respondent submits there was no breach of
the duty of procedural fairness in the circumstances and that the decisions of
the Director were reasonable. The letters to the applicant from the Director
coupled with a redacted Canadian Security Intelligence Service [CSIS] report
provided to the applicant in these proceedings are sufficient for this Court to
assess the reasonableness of the decisions (and to provide the applicant with
reasons for the Director’s decisions).
[5]
For the reasons that follow, I find that the
decisions denying and revoking the security clearances were administrative
decisions. A duty of procedural fairness was owed to the applicant. Although,
the scope of that duty in the circumstances was minimal, it was not met by the
Director of FINTRAC. The decisions to deny the Top Secret status and revoke the
Secret and Reliability Status must be quashed and sent back for re-determination
by the Director.
[6]
The decision to revoke the applicant’s
appointment as an employee of FINTRAC is governed by the law of contract. The
duty of procedural fairness does not apply to this decision.
Background
[7]
The applicant came to Canada from Russia via Cuba in 2000. She was granted status as a Convention Refugee in December 2001.
[8]
On October 26, 2010, the applicant was appointed
to a position as a policy analyst with the respondent, FINTRAC,
on an indeterminate basis.
[9]
FINTRAC, is an independent financial
intelligence agency that reports directly to the Minister of Finance. It was
established pursuant to the Proceeds of Crime (Money Laundering) and
Terrorist Financing Act, SC 2000, c 17 (the "Act"). Its major objectives are to collect, analyse, assess and disclose
information in order to assist in the detection, prevention and deterrence of
money laundering and of the financing of terrorist activities, and to enhance
public awareness and understanding of matters related to money laundering. FINTRAC provides financial intelligence to various agencies,
including the Royal Canadian Mounted Police [RCMP] and CSIS.
[10]
All employees at FINTRAC operate in a highly
secure environment (for example, access to computers requires a fingerprint
login). The applicant’s position in the Terrorist Financing Unit of the
Financial Analysis and Disclosures Directorate requires an even higher level of
security than generally required by FINTRAC employees.
[11]
The letter of offer of employment to the
applicant stated that the position offered was conditional upon her obtaining a
Secret security clearance before commencing her position and a Top Secret
security clearance thereafter. The applicant obtained her Secret security
clearance as required and was initially assigned to files that only required
Secret security clearance. She submitted an application for Top Secret security
clearance once she began her employment with FINTRAC.
[12]
On February 26, 2010 FINTRAC requested that CSIS
conduct a screening assessment of the applicant. The applicant was advised that
her assessment for Top Secret security clearance would be conducted by CSIS and
she provided her consent. As requested, she provided four references and her
curriculum vitae. She was interviewed by a representative of CSIS on October
13, 2011.
[13]
CSIS conducted the assessment of the applicant
in accordance with its established process as required by the Policy on
Government Security.
[14]
Three letters were sent to the applicant on
February 27, 2012 informing her of the decisions of the Director and advising
her of the redress mechanisms for the denial and revocation of her security
status including the option of filing a complaint with the Security
Intelligence Review Committee [“SIRC”] pursuant to s. 42 of the Canadian
Security Intelligence Service Act, RSC 1985, c C-23 (the “CSIS Act").
[15]
On March 26, 2012, the applicant filed a
complaint with SIRC in an effort to have the decisions re-considered. SIRC
dismissed the complaint for lack of jurisdiction. Section 42 of the CSIS Act
refers to the decisions of “Deputy Heads” but this provision does not apply to
all federal agencies. Section 29 of the CSIS Act designates who is a
Deputy Head for the purposes of s 42 of the CSIS Act. At the relevant
time the Director of FINTRAC was not designated. Accordingly, the security
clearance decision of the Director did not fall within the jurisdiction of
SIRC.
[16]
The applicant then sought judicial review to
this Court.
[17]
The CSIS security assessment was disclosed to
the applicant in a redacted form following her notice of application for
judicial review. This Court directed that the redacted report be received
pursuant to Rule 317 of the Federal Courts Rules, SOR 98/106 and that if
the applicant wished to contest the redactions, she should make an application
under subsection 37(3) within 10 days of the Court’s Directions. The applicant
did not make an application contesting the redactions.
The CSIS Report
[18]
The un-redacted portions of the CSIS assessment
included, among other things, the following information:
•
The applicant has dual Canadian and Russian
citizenship;
•
The applicant had several social interactions
with a Russian diplomat who was friends with her ex-fiancé;
•
The applicant had social interactions with
another Russian diplomat who she met by chance at a Cirque du Soleil show and
also attended one other social event with him at the Russian Embassy;
•
The applicant discussed recent contact with
another Russian diplomat who “she meets all the time” at various social events
but has no contact with him outside such events;
•
When asked what she would do if she was ever approached
for information, the applicant responded that she would “mostly likely say no”,
but then clarified that she might not say no immediately and instead might tell
her supervisor in case she could be used as a double agent; and,
•
The CSIS representative perceived the applicant
to be guarded during the interview responding only with short answers.
[19]
The assessment also noted that the Director “may
wish” to provide the applicant with a security briefing on measures related to
her position and that the Service could also offer the applicant an opportunity
to undergo a polygraph test to further assess her loyalty to Canada, with the
concurrence of the Director.
[20]
The un-redacted portion of the assessment does
not make recommendations with respect to a final decision on the security
clearance; it states only that the final decision to grant, deny or revoke a
clearance rests with the agency, i.e. the Director of FINTRAC.
The Decision under Review
[21]
The Director of FINTRAC, Jeanne Fleming,
communicated the four decisions to the applicant by way of three letters sent
on February 27, 2012.
[22]
The first letter informed the applicant of the
Director’s decision to deny her Top Secret security clearance and to revoke her
Secret security clearance. The letter stated the decision was “[a]s a result of
the security concerns brought to my attention and in accordance with the
requirements of Section 2.8 of the Standard on Personnel Security titled,
‘Evaluating Security Assessment Information’”, […].
[23]
The letter also referred to the Policy on
Government Security and the Director’s duty to inform the applicant of her
right to seek redress or review of the decision in accordance with Section 6 of
the Personnel Security Standard. More specifically, the letter advised the
applicant she could:
•
file a complaint with the Security Intelligence
Review Committee;
•
file a complaint to the Canadian Human Rights
Commission if based on one or more of the prohibited grounds; and/or,
•
raise the matter before the Federal Court.
[24]
The second letter informed the applicant of the
decision to revoke her Reliability Status. The letter noted that Section 2.8 of
the Standard on Personnel Security titled “Evaluating Security Assessment Information”
requires that where a “security clearance is denied or revoked on the grounds
of loyalty or reliability as it relates to loyalty, the individual’s
reliability status must also be re- assessed.” [My emphasis]. The Director
indicated she had undertaken this reassessment and reached her decision. The
letter provided the applicant with the same information regarding possible
review or redress of the decision.
[25]
The Director’s decision was based on the
assessment report prepared by CSIS.
[26]
The Policy on Government Security was attached
to the letters along with a hyperlink to the relevant Treasury Board Policies.
[27]
The third letter informed the Applicant of the
revocation of her appointment to FINTRAC effective February 28, 2012. The
letter noted that the applicant’s offer of employment was conditional upon her
obtaining Top Secret security clearance and, as a result of the denial of the
security clearance, the applicant no longer meets that condition of employment.
[28]
The relevant provisions of the Treasury Board
Policies and the provisions of the Act are attached as an appendix to this
decision.
Issues
[29]
This application for judicial review raises
three issues: the extent of the duty of procedural fairness on the Director of
FINTRAC and whether she breached the duty of procedural fairness or the rules
of natural justice in making any of the decisions; the reasonableness of the
decisions; and, the appropriate remedy, in the event there was a breach of
procedural fairness.
Standard of review
[30]
There is no disagreement with respect to the
standard of review. Whether the applicant was afforded procedural fairness
will be reviewed on the standard of correctness. Decisions regarding the
security clearance and reliability status are discretionary in nature and will
be reviewed on the reasonableness standard.
[31]
Where the standard of
reasonableness applies, the role of the Court is to determine whether the
decision “falls within ‘a range of possible, acceptable outcomes which are
defensible in respect of the facts and law’ (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47 [Dunsmuir]). “There might be more than one
reasonable outcome. However, as long as the process and the outcome fit
comfortably with the principles of justification, transparency and intelligibility,
it is not open to a reviewing court to substitute its own view of a preferable
outcome.” (Canada (Minister of Citizenship and
Immigration) v Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at para 59). The court should not
interfere with these decisions unless this standard is not met.
Was the duty of procedural fairness breached?
The applicant’s position
[32]
The applicant submits that she was afforded no
procedural fairness at all. She was not provided with notice of the concerns of
the Director and she was not given an opportunity to respond; she received only
the letters notifying her of the final decisions which did not provide any
reasons.
[33]
The applicant relies on Myers v Canada
(Attorney General), 2007 FC 947 at paras 38-39, [Myers], [2007] FCJ
No 1246 in support of her argument that the decision respecting her security
clearance attracts a greater than minimal degree of fairness. The Court in Myers
considered procedural fairness in the context of a decision to revoke a
reliability status.
[34]
The applicant notes that with respect to
decisions concerning security clearances, the duty of procedural fairness is
met by most governmental departments through the SIRC process which includes a
hearing. However, at the time of the applicant’s complaint, FINTRAC did not
fall under SIRC’s jurisdiction. The applicant submits that in these
circumstances, it was up to the Director of FINTRAC to fulfill the duty of
procedural fairness and she did not do so. At a minimum, the Director was
required to give her notice of the information upon which the decision was
being made and the opportunity to respond before the final decision was
rendered.
[35]
The applicant also submits that the decision to
revoke her appointment at FINTRAC attracted the duty of procedural fairness
because she was not subject to a contract of employment, unlike the situation
in Dunsmuir. She submits that the decisions to rescind her security
clearance were administrative decisions attracting the duty of procedural
fairness and the revocation of her appointment resulted from those
administrative decisions and is, therefore, also an administrative decision.
[36]
The applicant relies on Nasrallah v Deputy
Head (Department of Human Resources and Skills Development, 2012 PSLRB 12
at paras 232 and 234-236, [2012] CPSLRB No 13 [Nasrallah] and Gill
v Treasury Board, 2009 PSLRB 19 at paras 152 and 170, [2009] CPSLRB No 19 [Gill]
to support her position that the revocation of her appointment is an exercise
of administrative power.
The respondent’s position
[37]
The respondent submits that none of the
decisions of the Director breached the duty of procedural fairness.
[38]
The respondent notes that FINTRAC was
specifically excluded from the jurisdiction of SIRC at the relevant time
pursuant to section 29 of the CSIS Act. The respondent submits that this
is indicative of Parliament’s specific intention; that some agencies, including
FINTRAC, would not be afforded the procedural safeguards of SIRC. FINTRAC was,
therefore, not required to provide a comparable level of procedural protection
as would be afforded through a SIRC hearing.
[39]
The respondent acknowledges that a duty of
procedural fairness was owed, but says that duty was met. Due to the overall
context of the FINTRAC environment, the duty of procedural fairness does not
require full disclosure of the case to be met in the context of security
clearance decisions. The respondent notes that Myers, supra,
relied on by the applicant, did not involve any national security interests.
[40]
The respondent submits that in circumstances
where issues of national security are involved, information helpful to an
individual’s ability to make full answer and defence may be withheld (Harkat
(Re), 2009 FC 1266 at para 26, [2009] FCJ No 1611 and Charkaoui v Canada (Citizenship and Immigration), 2008 SCC 38 at para 62, [2008] 2 S.C.R. 326). If
national security interests may justify non-disclosure where liberty interests
are at stake, then national security interests can justify non-disclosure of
information where the interests at stake are lesser, including where the
interests relate to an individual’s employment.
[41]
The Respondent notes that FINTRAC is statutorily
prohibited pursuant to s. 19 of the CSIS Act from disclosing the
assessment to the applicant without the permission of CSIS. The respondent submits,
therefore, that the applicant could not have legitimately expected this
disclosure.
[42]
The respondent referred to the Supreme Court of
Canada’s decision in Baker v Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, [1999] SCJ No 39 [Baker] which
established that the duty of procedural fairness varies depending on the
context and that several factors must be considered to determine the scope of
the duty owed. The respondent submits that many of the Baker factors
favour a limited duty, including the statutory scheme, the nature of the
decision, and, in particular, the respect for the choices of procedure made by
the agency itself.
[43]
Given that the Baker factors are not an
exhaustive list, other factors may be considered in appropriate circumstances.
The respondent submits that in this case the source of the information must be
considered; the applicant provided the information to CSIS, and all the
information disclosed to her in the redacted CSIS assessment resulted from that
information, not from a third party.
[44]
With respect to the decision to terminate the
applicant’s employment, the respondent submits that no duty of procedural
fairness was owed because the employment relationship was contractual. The
offer of employment was expressly conditional upon the applicant obtaining Top
Secret security clearance and that condition was not met.
[45]
The respondent further submits that the
applicant’s reliance on Gill and Nesrallah in support of the
argument that the decision to terminate was an administrative decision is not
sound and, moreover, these decisions are not binding.
[46]
In response to the applicant’s argument that a
contractual relationship was found to exist in Dunsmuir due to the
specific provisions of the New Brunswick Civil Service Act, the
respondent submits that, despite the fact that there is no analogous statutory
provision in this case, contract law still governs. The law of contract applies
unless superseded by statute or agreement (Wells v Newfoundland, [1999]
3 SCR 199 at paras 30 and 33, [1999] SCJ No 50). The respondent also
distinguishes the present case from Dunsmuir on the basis that the
applicant was an employee and not a public office holder.
[47]
The respondent acknowledges that the Supreme
Court of Canada in Dunsmuir commented that a duty of procedural fairness
could apply to a termination decision despite a contractual relationship.
However, the Court envisioned two possible situations where the duty might
arise. First, the Court noted that a duty of procedural fairness could arise
for public office holders or Ministers of the State who hold office at pleasure
and are really subject to the will of the Crown. Second, the duty might flow by
necessary implication from a specific statutory power governing the employment
relationship. Neither is applicable to the facts of this case.
[48]
The applicant’s letter of offer coupled with the
appendices which set out the terms and conditions constitutes her contract,
which she signed and accepted. The applicant’s position was created by the
Director; it is not a statutory position. The Director of FINTRAC has the
power to terminate as set out in s 49 of the Act, infra, as does the
Governor in Council on the basis of security clearances, as set out in s 13 of
the Financial Administration Act, RSC 1985, c F-11, infra, and no duty of procedural fairness is
applicable.
The employment relationship is contractual
[49]
Before assessing the scope of the duty of
procedural fairness and whether it was breached, it is important to identify
the decisions to which such a duty applies.
[50]
There is no disagreement that the decisions to
deny and revoke the security clearances were administrative decisions and that
a duty of procedural fairness applies.
[51]
With respect to the decision to revoke the
applicant’s appointment to her position at FINTRAC, I do not agree with the
applicant’s position that this is an administrative decision. I appreciate that
such a finding is essential to the remedy the applicant seeks, given the
applicant’s reliance on the comments in Dunsmuir that if the termination
decision was made without procedural fairness it is void ab initio.
[52]
However, the Court in Dunsmuir remarked
that most public employees are employed on a contractual basis. There is
nothing on the facts of this case to suggest the applicant’s relationship with
FINTRAC is not contractual.
[53]
Moreover, the applicant’s reliance on passages
from Dunsmuir in support of the remedy she seeks must be put in context.
The Court was addressing the issue of whether reinstatement was a remedy; it noted
that reinstatement was not a remedy for either breach of contract or for breach
of procedural fairness (at para 108). In considering whether other remedies
would apply, the Court referred to decisions made in breach of procedural
fairness as void ab initio. The Court was not pronouncing that all
decisions to terminate public employment attract the duty of procedural
fairness; only that in cases where such a duty is owed, the breach would have
this result. As noted by the respondent, the Court had identified two
situations where a duty of procedural fairness could apply despite a contract
of employment. Neither of those situations apply to the present case.
[54]
The applicant was in a contractual employment
relationship. Although the letter of offer used the word “appointment”, this
does not signal that the applicant was appointed to a public office. The
applicant was appointed to a position with FINTRAC as an employee. The
exclusive authority of the Director as set out in s 49 of the Act includes the
authority to appoint, lay off or terminate the “employment of employees” and
to set the terms and conditions of “employment for employees”.
[55]
The applicant’s contract of employment was her
letter of offer coupled with the appendices that set out the terms and conditions,
which she accepted and signed.
[56]
The applicant relied on Nasrallah, supra
at para 235-236 for the position that a dismissal which flows from the
revocation of reliability status or security clearance is not merely a matter
of contract and that the decision must comply with the duty of procedural
fairness:
235 In my view,
unless it can be sustained that the determination that the employee no longer
met the condition of his employment due to his loss of reliability status is
tainted by procedural unfairness or bad faith, an adjudicator's jurisdiction
ends once cause has been properly established.
236
Based on the jurisprudence cited above, I
believe that since the decision to revoke the reliability status is clearly an
element that lead to the determination that the grievor no longer met the
requirement of his position and ultimately to his termination of employment, I
must consider all the process that led to the termination of employment. In
other words, I must consider whether procedural fairness and good faith were
present in the context surrounding the revocation of the reliability status.
[Emphasis added].
[57]
Although the applicant suggests that the
adjudicator was prepared to consider the procedural fairness of the
termination, the clear wording conveys that the Board was speaking of the need
to consider the procedural fairness of the administrative decisions which were
the context for the decision to revoke the security clearance.
[58]
In Nesrallah, the Board found that Mr
Nesrallah ought to have known the information upon which his security clearance
was revoked and his termination was based. Accordingly, there was no breach of
procedural fairness.
[59]
In Gill, supra the Board found
that the investigator did not provide procedural fairness to Mr Gill in
revoking his enhanced reliability status and in terminating his employment as a
result. The Board noted at para 152:
I conclude that
terminating the grievor’s employment was an administrative action and that it
was done for non-disciplinary reasons. To retain jurisdiction, I would have to
be convinced that the employer acted in bad faith or breached the greivor’s right
to procedural fairness.
[60]
In Gill, the comments that the
termination decision was an administrative act were made in the context of the
adjudicator’s determination of his own jurisdiction. To the extent that the
Board’s decision goes beyond a jurisdictional analysis, it is not binding on
this Court and I would decline to follow its finding that the termination was
an administrative decision.
[61]
The decision to deny or revoke a security
clearance is an administrative decision which attracts a duty of procedural
fairness. Whether revocation or denial of a security status is the cause for
dismissal or whether the dismissal is due to the employee’s failure to meet an
essential condition of the contract of employment, the issue is whether the
dismissal is wrongful. The remedy lies in contract law.
[62]
No duty of procedural fairness was owed with
respect to the decision to revoke the applicant’s appointment as an employee of
FINTRAC.
The
Director did not meet the duty of procedural fairness with respect to the
security clearance decisions
The scope
of the duty owed
[63]
The duty of procedural fairness applies to the
Director’s decisions to deny the applicant her Top Secret status and to revoke
both her Secret security clearance and Reliability status.
[64]
FINTRAC was not subject to the SIRC review
process at the relevant time. However, due to recent amendments to the Canadian
Security Intelligence Service Act Deputy Heads of the Public Service of Canada
Order, SI/93-81, which designates who is a Deputy Head pursuant to s. 29(e)
of the CSIS Act, the security clearance decisions of the Director of
FINTRAC are now subject to SIRC. If the same decisions were made today, an
individual would have the opportunity to seek review or redress through that
process.
[65]
It appears that the Director thought that the
SIRC process did apply to provide a review mechanism for the applicant, since
her letter to the applicant advised her of redress mechanisms including SIRC.
Had the SIRC process been available, the applicant would have had an
opportunity to make submissions, presumably based on the disclosure of the
redacted CSIS assessment report. However, the ultimate decision would rest with
the Director.
[66]
Both the applicant and respondent agree that
because the SIRC process did not apply, the duty of procedural fairness owed by
the Director did not have to mirror that of SIRC, but they differ on the extent
of the duty owed.
[67]
The applicant relied on Myers to support
her position that the degree of procedural fairness owed is more than minimal
and that the Policy on Government Security requires procedural fairness.
[68]
In Myers, Justice Kelen found that a
Director at the Canada Revenue Agency had breached the duty of procedural
fairness in revoking a reliability status, and noted:
[35] The fact that the
Director’s decision is administrative in nature and one that affects the
“rights, privileges or interests” of the applicant is enough to give rise to a
duty of procedural fairness: see Cardinal v. Director of Kent Institution,
[1985] 2 S.C.R. 643 and Baker v. Canada, [1999] 2 S.C.R. 817. The
presence of a duty of fairness also appears to be encapsulated within the Government
Security Policy itself, where article 10.9 states that government
departments must “[t]reat individuals
in a fair and unbiased manner, and give them an opportunity to explain adverse
information before a decision is reached.”
[69]
The applicant submits that
article 10.9 referred to by Justice Kelen is now article 6.1.6. However, I note
that the wording of article 6.1.6 has changed. That provision falls within the
section of the Treasury Board Policy on Government
Security that addresses
the duties of the Deputy Head (i.e. the Director). It provides that Deputy
Heads of all departments are responsible for:
6.1.6
Ensuring that all individuals that will have access to government information
and assets, including those who work in or for offices of Ministers and
Ministers of State, are security screened at the appropriate level before the
commencement of their duties and are treated in a fair and unbiased manner.
[70]
The current provision does not refer to giving
individuals an opportunity to explain adverse information before a decision is
reached. However, such wording is included in article 2.7 of the Personnel
Security Standard which applies to the revocation of
reliability status and provides:
2.7
Individuals must be given an opportunity to explain adverse information
before a decision is reached. Unless the information is exemptible under the
Privacy Act, individuals must be given the reasons why they have been denied
reliability status.
[71]
Similar wording does not appear in the provisions
regarding the Secret and Top Secret security clearance. The policy now provides
more generally that:
2.10 If the required level is denied, Section 42 of the CSIS
Act requires that the individual be advised in writing within 10 days of
the decision and also be informed of his or her right to complain to the
Security Intelligence Review Committee (SIRC). See Section 6 for additional
information.
[72]
The policy distinguishes decisions regarding
reliability status from those regarding Top Secret and Secret security
clearance, and appears to rely on SIRC as the review mechanism for the latter.
As noted above, FINTRAC was not subject to the SIRC process at the relevant
time.
[73]
Regardless, the issue is not whether a duty of
procedural fairness is required, but the extent of that duty in the
circumstances.
[74]
In Myers, Justice Kelen
went on to note:
[36] In situations where
such a duty arises, the extent of the duty is dependent on the circumstances of
each individual case. In Baker, above, the Supreme Court outlined a
number of factors that are to be weighed in determining the appropriate level
of procedural fairness to be afforded: the nature of the decision and the
procedure followed in making it; the nature of the statutory scheme and
provisions within it; the importance of the decision to the individual
affected; the legitimate expectations of the person challenging the decision;
and the agency’s choice of procedure in making the decision.
[75]
Justice Kelen applied the Baker factors
noting that there was no other appeal procedure other than judicial review to
this Court, which pointed to “the need for procedural safeguards above the
minimal level”. In addition, the decision to deny or revoke the reliability
status was of profound impact to the applicant as his employment depended on it
signalling “a degree of fairness that is greater than the minimum level”.
Justice Kelen went on to find that the applicant was entitled to know the
information upon which the decision was made and to explain the adverse
information before the decision was made.
[76]
Although the applicant relies on Myers as
an analogous case, it can be distinguished as there were no national security
concerns at play and the decision revoked a reliability status for disciplinary
reasons. However, the approach taken by Justice Kelen in relying on the Baker
factors to first determine the content or level of the duty provides guidance
for the present case.
The Baker Factor Analysis
[77]
In Baker, Justice L’Hureux Dube provided a list
factors affecting the duty of procedural fairness emphasizing that the content
of the duty must be determined in the specific context of each case; the duty of fairness is flexible and variable, and depends on the
context of the particular statute and the rights affected. The Court noted that
the factors were not exhaustive and reiterated that procedural fairness is
based on the principle that individuals affected by decisions should have the
opportunity to present their case and to have decisions affecting their rights
and interests made in a fair and impartial and open process “appropriate to the
statutory, institutional, and social context of the decision” (Baker, supra
at para 28).
[78]
The Baker factors inform the scope of the
duty owed in the circumstances.
The nature of the decision:
[79]
The level of procedural fairness owed by a decision-maker
may be affected by the nature of the decision being made and
the process followed in making it. The more the process resembles judicial
decision making, the more likely it is that procedural protections closer to
the trial model will be required by the duty of fairness [Baker at para
23].
[80]
The process followed by FINTRAC in making the
decisions did not resemble judicial decision making at all; rather it was a
decision entrusted exclusively to the Director without any apparent internal
review process prior to the final decision. The CSIS
process was typical and followed the CSIS customary screening assessment
approach; the applicant consented to the screening, provided her personal
information and was interviewed.
The nature of the statutory scheme:
[81]
Greater procedural protections will be required
when no appeal procedure is provided within the statute, or when the decision
is determinative of the issue and further requests cannot be submitted [Baker
at para 24].
[82]
In the present case, the statutory scheme (the Act)
did not provide for any review or appeal mechanism within FINTRAC. The
Government Policy on Security includes a general provision (6.1) that, “Departments should establish an internal screening
review process to review all relevant information and negative recommendations
before reliability status or a security clearance is denied or revoked,” but no
such process was put in place by FINTRAC. The only review
mechanism available for FINTRAC security clearance decisions was the judicial review
to this Court, which does not provide an alternative to procedural fairness in
the decision making process, only correction for decisions that breach
procedural fairness.
The importance of the decision to the individual affected:
[83]
The more important the decision and the greater the
impact on the persons affected, the more stringent the procedural protections
mandated. The importance of a decision to the individuals affected constitutes
a significant factor affecting the content of the duty of procedural fairness [Baker
at para 25].
[84]
There is no doubt that the decision to deny and
revoke her security clearance was of significant importance to the applicant.
Not only did it end her employment with FINTRAC, but it would likely make her
unemployable across the federal government.
Legitimate Expectations:
[85]
The legitimate expectations of the person
challenging the decision may determine what procedures the duty of fairness
requires in given circumstances; if the person has a legitimate expectation
that a certain procedure will be followed, this procedure will be required by
the duty of fairness [Baker at para 26].
[86]
There is no evidence on the record of the applicant’s
legitimate expectations of the process to be followed with respect to the
denial and revocation of her security clearance. She was aware that a Top
Secret security clearance was required, that CSIS would conduct the assessment,
that she would be interviewed and that the Director would make the decision.
The Act establishing FINTRAC constituted notice that the Director had exclusive
authority in human resource management and other issues. The Treasury Board
Policies on Government Security and the Personnel Security Standard are easily
accessible and would have informed the applicant of the nature of the screening
and the possible consequences of denial of the Top Secret clearance.
[87]
The respondent submits that the applicant would
not have any legitimate expectations of disclosure of the security concerns
because FINTRAC was precluded from providing this information. However, once
she received the letter from the Director, she likely expected the SIRC process
to be available given that the letter referred her to this as a redress
mechanism and given that she launched a complaint to SIRC.
[88]
This Court has found that the duty of procedural
fairness may vary depending on whether a security clearance is denied or
whether an existing security clearance is revoked. Although these cases did not
deal with national security concerns, the distinction may be relevant to the
legitimate expectations of the applicant. In addition, the distinction is an
additional consideration given the caution in Baker that the factors are
non-exhaustive.
[89]
In Xavier v Canada (Attorney General), 2010
FC 147, [2010] FCJ No 175, the applicant’s airport security clearance was
revoked as a result of criminal charges that were ultimately withdrawn.
Although the applicant was permitted to make submissions to the Board following
the investigation, several relevant pieces of information, including a report
from the airport intelligence unit, were not disclosed leading to the result
that he was not able to provide a meaningful response. Justice O’Reilly
rejected the respondent’s argument that the duty owed was relatively low
noting, among other reasons that the cases relied on by the respondent dealt
with a denial of a security clearance rather than revocation.
[13] The Minister suggests
that the degree of fairness owed to Mr. Xavier is relatively slight, according
to the factors outlined in Baker v. Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817. Further, he suggests that this Court
found this to be so in Irani v. Canada (Attorney General), 2006
FC 816 and Motta v. Canada (Attorney General) (2000), 180 F.T.R.
292. I note that the latter cases dealt specifically with the granting of a
TSC, not the cancellation of one. Further, there were no allegations of
misconduct against the applicants and no risk that they would lose their jobs.
Here, Mr. Xavier has been accused of serious offences, and was fired. The duty
of fairness owed to him was greater than in the cases cited by the Minister.
That duty must include, at least, the disclosure to him of information to be
put before the Advisory Body and an opportunity to respond to it.
[90]
Similar distinctions were noted in Kahin v Canada (Minister of Transport), 2010 FC 247, [2010] FCJ No 288 and Russo v Canada (Minister of Transport, Infrastructure and Communities), 2011 FC 764, [2011] FCJ No 957 [Russo],
and Motta v Canada (Attorney General) (2000), 180 FTR 292, [2000] FCJ No
27.
[91]
In Russo, Justice Russell noted that
decision to deny a clearance attracted only a minimal duty of procedural
fairness.
[57] As the Respondent
points out, this Court has assessed the content of the duty of procedural
fairness in the specific context of applications for security clearances on a
number of occasions. These decisions demonstrate that the level of procedural
fairness required with respect to the denial of an initial application for a
clearance, as opposed to a revocation, is minimal.
[92]
In the present case, two of the decisions at
issue revoke an existing status, which could call for a higher level of
procedural fairness because an existing status or privilege is being taken
away. I acknowledge that the revocation was a consequence of the denial and
that the Director was required to reassess the Secret and Reliability Status
upon denial of the Top Secret status. Nevertheless, the decisions were made to
revoke the existing status without any review process.
Choice of Procedure:
[93]
The choice of procedure made by the agency itself
should be taken into account and respected; particularly when the statute
leaves the decision-maker the ability to choose its own procedures, or when the
agency has an expertise in determining what procedures are appropriate in the
circumstances [Baker at para 27].
[94]
The procedures followed by FINTRAC
reflected the statutory mandate of the Director and the application of most,
but not all, of the relevant TB policies. The Director had the discretion,
based on her review of the CSIS report, to decide without any further process.
The Director, as Deputy Head, had the full responsibility to determine the
security clearance level of employees, and although the CSIS assessment provided
essential information, the Director had the final authority. However, although
the Personnel Security Standard (6.1) suggests that all Departments should have
a process for review of security assessments before a clearance is denied or
revoked, no such process existed at FINTRAC.
[95]
In summary, at least two of the five Baker
factors favour greater procedural protections for the applicant than were
provided; the importance of the decision to the applicant and the absence of
any review mechanism other than the judicial review to this Court.
[96]
The other factors, which
attract significant weight, suggest that more minimal procedural protections
would be sufficient. The applicant was aware that the Top Secret status was a
condition of employment and as such she had notice that the CSIS interview
would be conducted and would be the basis for the decision regarding her
security status. She was aware of the FINTRAC mandate and the secure
environment needed and of the high levels of security required by employees.
[97]
The applicant consented to the screening and should
have been aware of the Treasury Board policies that describe the nature of the
assessment and what is being assessed. The criteria for Top Secret security
clearance refer to loyalty to Canada and reliability as it relates to loyalty.
The applicant should have been aware of what CSIS would be assessing and how
the information she provided would be considered in relation to this criteria.
The information disclosed in the security assessment was based on information
provided by the applicant.
[98]
This leads to the conclusion that the duty owed in
these circumstances was at the lower end of the spectrum or was minimal. But
even the most minimal duty of procedural fairness requires
that the person whose rights or interests are affected know the case they have
to meet and have some opportunity to respond before the final decision is made.
[99]
As stated in Baker:
[28]
[…] The values underlying the duty of procedural fairness relate to the
principle that the individual or individuals affected should have the
opportunity to present their case fully and fairly, and have decisions
affecting their rights, interests, or privileges made using a fair, impartial,
and open process, appropriate to the statutory, institutional, and social
context of the decision.
The duty was breached
[100]
Although the Director of FINTRAC was not at
liberty to disclose the specific security concerns to the applicant, the
Director made the final decision without disclosing that she had concerns at
all and without providing any opportunity for the applicant to make additional
submissions or provide additional information.
[101] As noted in Thomson v Canada (Deputy Minister of Agriculture),
[1992] 1 S.C.R. 385 at p 485, [1992] SCJ No 13 at para 31[Thomson]:
This Court has repeatedly recognized the general common law
principle that there is "a duty of procedural fairness lying on every
public authority making an administrative decision which is not of a
legislative nature and which affects the rights, privileges or interests of an
individual" (see Cardinal v. Director of Kent Institution, [1985]
2 S.C.R. 643, at p. 653). It follows that the Deputy
Minister was under a duty to comply with the principles of procedural fairness
in the context of security clearance decision-making. Generally speaking,
fairness requires that a party must have an adequate opportunity of knowing the
case that must be met, of answering it and putting forward the party's own
position. When all the surrounding circumstances are taken into account
it is clear that the Deputy Minister fully satisfied these requirements.
[Emphasis added].
[102]
Although the applicant had notice of the CSIS
assessment process and its purpose, had access to all the Treasury Board
policies regarding security, and provided the information to CSIS that CSIS
relied on for the assessment, the applicant was not made aware of the concerns
of the Director before the Director made her final decision. The Director had
the authority to grant or deny the security clearance regardless of the CSIS
assessment. The Director rendered her decision based on the security concerns
she had without alerting the applicant to the nature of the concerns or
providing the applicant with any opportunity to provide submissions in response
to those concerns. As such, the applicant could not provide any further
information which may have had a bearing on the Director’s decision.
[103]
The Director was statutorily prohibited from
disclosing the CSIS assessment to the applicant without the consent of CSIS.
However, some information could possibly have been provided regarding the
Director’s more general concerns without disclosing protected information. For
example, the Director could have flagged her concerns about loyalty in a
general way, as she did in the letters revoking the Secret security clearance
and Reliability status. In addition, the Director could have advised the
applicant that some aspects of the CSIS report led her to have concerns. She
could then have provided the applicant an opportunity to respond based on what
the applicant had told CSIS at the interview.
[104]
The Treasury Board Policy contemplates that SIRC
is usually available as a redress mechanism. For decisions regarding
reliability status, there is an express provision that the individual have an
opportunity to respond. There is no similar provision for decisions regarding
the Secret or Top Secret security clearance because the SIRC process is
referred to as the review mechanism.
[105]
In addition, Government agencies are generally
required to have some internal review mechanism for such decisions. It appears
that FINTRAC had none at the applicable time and was exempt from the SIRC
process. The Director’s decisions were, therefore, immune from review except
for judicial review to this Court.
[106]
The provision of the redacted report after the
decision was made does not address a breach of procedural fairness in the
decision making process. It only provides the applicant with reasons for the
purpose of determining her next steps (i.e. whether to pursue the judicial
review) and the court with the record to determine if the reasons were adequate
and the decision reasonable.
[107]
The duty of procedural fairness owed in the
circumstances was minimal; but even the minimal duty of procedural fairness
requires that the person whose rights or interests are affected know the case
they have to meet and be given some opportunity to respond before the final
decision is made. Although the applicant should have known the nature of the
security concerns, she was not provided with any opportunity to respond, even
in a general way, to the Director who was the final decision-maker.
[108]
I find the Director breached the duty of
procedural fairness with respect to the first three decisions under review.
Were the decisions of the Director reasonable?
[109]
If I had found that the Director had not
breached the minimal duty of procedural fairness owed in the circumstances, I
would have also found that the decisions of the Director were reasonable and
the reasons provided for the decisions were adequate.
[110]
The applicant acknowledges that Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury
Board), 2011 SCC 62, [2011] 3 S.C.R. 708 established that the
reasons need not specifically address every issue raised:
[16] Reasons
may not include all the arguments, statutory provisions, jurisprudence or other
details the reviewing judge would have preferred, but that does not impugn the
validity of either the reasons or the result under a reasonableness
analysis. A decision-maker is not required to make an explicit finding on
each constituent element, however subordinate, leading to its final conclusion
(Service Employees’ International Union, Local No. 333 v. Nipawin District
Staff Nurses Assn., [1975] 1 S.C.R. 382, at p. 391). In other words,
if the reasons allow the reviewing court to understand why the tribunal made
its decision and permit it to determine whether the conclusion is within the
range of acceptable outcomes, the Dunsmuir criteria are met.
[111]
I do not agree with the applicant’s submission
that the reasons fall far below this standard. The Director’s reasons do allow
this Court to understand why the Director made the decisions and to determine
whether the Dunsmuir criteria were met.
[112]
The letters regarding the security clearances
referred to “security concerns brought to my attention” and also referred to
the applicable Treasury Board policies on Government and Personnel Security.
Notably, the letter which informed the applicant of the revocation of her
Reliability Status indicated, in accordance with the Standard on Personnel
Security “that where a security clearance is denied or revoked on the grounds
of loyalty or reliability as it relates to loyalty, the individual’s reliability
status must also be re-assessed.” Therefore the applicant would have been made
aware that the reasons were due to security concerns regarding her loyalty.
[113]
The CSIS report also forms part of the reasons
given the Director’s reliance on it. As noted above, the CSIS assessment report
indicated, among other information that: the applicant had social contact with
Russian Diplomats; the applicant responded oddly to questions regarding how she
would react if she was asked for information obtained through her employment
with FINTRAC; and the applicant appeared guarded during the interview.
[114]
As noted by the Supreme Court of Canada in Thomson at para 33
and 34, the Deputy Minister (or Deputy Head) has the responsibility for
ensuring government security and as a result, the authority to make the ultimate
decisions on security clearances. The Deputy is not bound to follow a
recommendation of SIRC and the Court should only interfere if there is no
evidence to support the decision. The same would apply in the absence of a SIRC
process. As Justice Cory noted:
33 The word "recommendations" in the context of
s. 52(2) should receive its plain and ordinary meaning. It should
not be taken to mean a final or binding decision. Consequently,
s. 52(2) does not detract from the Deputy Minister's authority to make the
ultimate decision regarding security clearance. This conclusion flows
from the wording of s. 52(2). It is supported by the compelling
policy reasons for ensuring government security, a duty which is the
responsibility of each Deputy Head.
34 Further, the Deputy Minister clearly had evidence upon
which he could base his conclusion that security clearance should not be
granted. In those circumstances, a court should not interfere with that
decision.
[115]
Although the Court does not have access to the
redacted portions of the CSIS assessment, the information disclosed is
sufficient to ground the Director’s concerns about her loyalty and her
reliability as it relates to loyalty, particularly given the nature of
FINTRAC’s mandate and the work that the applicant would be responsible for
within FINTRAC . The Director bears the responsibility for security within the
organisation and is best placed to assess whether to grant, deny or revoke a
security clearance on the basis of the assessment done by CSIS. If the Director
had provided an opportunity for the applicant to make some submissions to her
prior to making the final decision, and the Director then reached the same
conclusion, the decisions would fall within the range of possible acceptable
outcomes.
[116]
Deference would be owed to the Director. She had
the onerous responsibility for ensuring security at FINTRAC, an agency that
must ensure the highest levels of security in its operations and from its
people. As Director she had the expertise and experience in making the
difficult decisions to ensure security and to manage human resources.
The remedy
[117]
As I have found that there was a breach of the
minimal duty of procedural fairness owed, the decisions regarding the security
clearance are quashed and must be remitted to the current Director of FINTRAC
for re-determination with some opportunity for the applicant to respond to the
information that has been disclosed, whether in writing or orally. It is
possible that the Director may reach the same result following re-determination,
but the applicant must have some opportunity to address the security concerns
disclosed.
[118]
As I noted earlier in these reasons, the
decision to revoke the applicant’s appointment as an employee of FINTRAC is not
an administrative decision and is governed by the law of contract. Contrary to
the applicant’s argument, the decision is not void ab initio. Any
compensation to be sought by the applicant must be done through an action
rather than an application for judicial review.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1. The application for judicial review is allowed with
respect to the three decisions regarding the Top Secret and Secret security
clearance and the Reliability status.
2. Costs are awarded to the applicant.
“Catherine M. Kane”
Appendix A: Relevant Statutory Provisions
|
Proceeds of Crime (Money Laundering) and Terrorist
Finance Act, RSC 2000, c
17
|
Loi sur le recyclage des produits de la criminalité
et le financement des activités terroristes, LRC 2000, ch 17
|
|
3. The
object of this Act is
(a) to implement specific measures to detect and deter money
laundering and the financing of terrorist activities and to facilitate the
investigation and prosecution of money laundering offences and terrorist
activity financing offences, including
|
3. La présente
loi a pour objet:
(a) de mettre en oeuvre des mesures visant à détecter et
décourager le recyclage des produits de la criminalité et le financement des
activités terroristes et à faciliter les enquêtes et les poursuites relatives
aux infractions de recyclage des produits de la criminalité et aux
infractions de financement des activités terroristes, notamment :
|
|
(i) establishing record keeping and client identification
requirements for financial services providers and other persons or entities
that engage in businesses, professions or activities that are susceptible to
being used for money laundering or the financing of terrorist activities,
|
(i) imposer des obligations de tenue de documents et
d’identification des clients aux fournisseurs de services financiers et
autres personnes ou entités qui se livrent à l’exploitation d’une entreprise
ou à l’exercice d’une profession ou d’activités susceptibles d’être utilisées
pour le recyclage des produits de la criminalité ou pour le financement des
activités terroristes,
|
|
(ii) requiring the reporting of suspicious financial transactions
and of cross-border movements of currency and monetary instruments, and
|
(ii) établir un régime de déclaration obligatoire des opérations
financières douteuses et des mouvements transfrontaliers d’espèces et
d’effets,
|
|
(iii) establishing an agency that is responsible for dealing with
reported and other information;
|
(iii) constituer un organisme chargé de l’examen de
renseignements, notamment ceux portés à son attention en application du
sous-alinéa (ii);
|
|
(b) to respond to the threat posed by organized crime by providing
law enforcement officials with the information they need to deprive criminals
of the proceeds of their criminal activities, while ensuring that appropriate
safeguards are put in place to protect the privacy of persons with respect to
personal information about themselves; and
|
(b) de combattre le crime organisé en
fournissant aux responsables de l’application de la loi les renseignements
leur permettant de priver les criminels du produit de leurs activités
illicites, tout en assurant la mise en place des garanties nécessaires à la
protection de la vie privée des personnes à l’égard des renseignements
personnels les concernant;
|
|
(c) to assist in fulfilling Canada’s international commitments to
participate in the fight against transnational crime, particularly money
laundering, and the fight against terrorist activity.
|
(c) d’aider le Canada à remplir ses
engagements internationaux dans la lutte contre le crime transnational,
particulièrement le recyclage des produits de la criminalité, et la lutte
contre les activités terroristes.
|
|
[…]
|
[…]
|
|
40. The
object of this Part is to establish an independent agency that
|
40. La présente partie a pour objet de constituer un organisme qui
:
|
|
(a) acts at arm’s length from law enforcement agencies and other
entities to which it is authorized to disclose information;
|
(a) est autonome et indépendant de tout organisme chargé de
l’application de la loi et des autres entités à qui il est autorisé à
communiquer des renseignements;
|
|
(b) collects, analyses, assesses and discloses
information in order to assist in the detection, prevention and deterrence of
money laundering and of the financing of terrorist activities;
|
(b) recueille, analyse, évalue et
communique des renseignements utiles pour la détection, la prévention et la
dissuasion en matière de recyclage des produits de la criminalité ou de
financement des activités terroristes;
|
|
(c) ensures that personal information under its control is
protected from unauthorized disclosure;
|
(c) assure la protection nécessaire aux
renseignements personnels qui relèvent de lui;
|
|
(d) operates to enhance public awareness and
understanding of matters related to money laundering; and
|
(d) sensibilise le public aux questions
liées au recyclage des produits de la criminalité;
|
|
(e) ensures compliance with Part 1.
|
(e) procède à des contrôles
d’application de la partie 1.
|
|
|
|
|
41. (1) There is hereby established the Financial Transactions
and Reports Analysis Centre of Canada.
|
41. (1) Est
constitué le Centre d’analyse des opérations et déclarations financières du
Canada.
|
|
(2) The
Centre may exercise powers only as an agent of Her Majesty in right of Canada.
|
(2) Le
Centre ne peut exercer ses pouvoirs qu’à titre de mandataire de Sa Majesté du
chef du Canada.
|
|
[…]
|
[…]
|
|
49. (1) The
Director has exclusive authority to
|
49. (1) Le directeur a le pouvoir exclusif:
|
|
(a) appoint, lay off or terminate the employment of the
employees of the Centre; and
|
(a) de nommer, mettre en disponibilité
ou licencier les employés du Centre;
|
|
(b) establish standards, procedures and processes
governing staffing, including the appointment, lay-off or termination of the
employment of employees otherwise than for cause.
|
(b) d’élaborer des normes et méthodes
régissant la dotation en personnel, notamment la nomination, la mise en
disponibilité ou le licenciement — à l’exclusion du licenciement motivé.
|
|
(2) Nothing
in the Public Service Labour Relations Act shall be construed so as to affect the right
or authority of the Director to deal with the matters referred to in
paragraph (1)(b).
|
(2) La Loi
sur les relations de travail dans la fonction publique n’a pas pour effet
de porter atteinte au droit ou au pouvoir du directeur de régir les questions
visées à l’alinéa (1)b).
|
|
(3) Subsections
11.1(1) and 12(2) of the Financial Administration
Act do not apply to the Centre, and the Director may
|
(3) Les
paragraphes 11.1(1) et 12(2) de la Loi sur la
gestion des finances publiques ne s’appliquent pas
au Centre; le directeur peut :
|
|
(a) determine the organization of and classify the
positions in the Centre;
|
(a) déterminer l’organisation du Centre
et la classification des postes au sein de celui-ci;
|
|
(b) set the terms and conditions of employment for
employees, including termination of employment for cause, and assign to them
their duties;
|
(b) fixer les conditions d’emploi —
notamment en ce qui concerne le licenciement motivé — des employés et leur
assigner des tâches;
|
|
(c) notwithstanding section 112 of the Public Service Labour Relations Act, in
accordance with the mandate approved by the Treasury Board, fix the
remuneration of the employees of the Centre; and
|
(c) malgré l’article 112 de la Loi sur les relations de travail dans la fonction publique, conformément au mandat approuvé par le Conseil du Trésor, fixer la
rémunération des employés du Centre;
|
|
(d) provide for any other matters that the Director
considers necessary for effective human resources management in the Centre.
|
(d) régler toute autre question dans la
mesure où il l’estime nécessaire pour la bonne gestion des ressources
humaines du Centre.
|
Appendix B: Relevant Government Policies
Treasury
Board of Canada Secretariat: Policy on Government Security
[…]
2.1 This policy applies to:
•
All
departments within the meaning of Schedules I, I.1, II, IV and V of the Financial Administration Act (FAA), unless excluded by
specific acts, regulations or Orders in Council.
[…]
3.6 Deputy heads are accountable for the
effective implementation and governance of security and identity management
within their departments and share responsibility for the security of
government as a whole. This comprises the security of departmental personnel,
including those working in or for offices of Ministers or Ministers of State,
and departmental information, facilities and other assets.
[…]
Requirements
6.1 Deputy heads of all departments are
responsible for:
6.1.1 Establishing a security program
for the coordination and management of departmental security activities that:
- Has a governance structure with clear accountabilities
- Has defined objectives that are aligned with departmental and
government-wide policies, priorities and plans; and
- Is monitored, assessed and reported on to measure management
efforts, resources and success toward achieving its expected results;
[…]
6.1.6 Ensuring that all individuals who
will have access to government information and assets, including those who work
in or for offices of Ministers and Ministers of State, are security screened at
the appropriate level before the commencement of their duties and are treated
in a fair and unbiased manner;
6.1.7 Ensuring that their authority to
deny, revoke or suspend security clearances is not delegated;
Treasury Board
of Canada Secretariat: Personnel
Security Standard
[…]
2.7
Evaluating results of reliability checks
In arriving at
a reliability screening decision, officials are expected to provide a fair and
objective assessment that respects the rights of the individual. Individuals must be given an opportunity to explain adverse
information before a decision is reached. Unless the information is exemptible
under the Privacy Act, individuals must be given the reasons why they have been
denied reliability status.
The authorizing manager will need to determine
whether a person can be considered trustworthy, taking into account the
assessments in articles 2.7.1 to 2.7.5 below.
[…]
2.8 Evaluating security assessment
information
The decision to grant or deny a security
clearance is based primarily on the investigative body's recommendation
concerning the person's loyalty to Canada, as well as their reliability as it
relates to such loyalty.
Depending upon the security clearance level
requested and the position or contract for which the individual is being
considered, consideration is given to some or all of the following factors:
•
Character (honesty, stability, etc.).
•
Criminal record (if any).
•
Financial situation.
•
Citizenship.
•
Personal beliefs and associations.
•
Statements made during the subject interview.
•
CSIS indices check.
A decision to grant or deny a security
clearance must be based upon adequate information.
Where such information does not exist, or cannot be obtained, a security
clearance cannot be given. Normally, an adequate quantity and quality of
information covers:
•
For site access, the last five continuous years or
to age 16 years, whichever comes first.
•
For Levels I, II and III, the last 10 continuous
years or to age 16 years, whichever comes first.
Adverse information concerning an individual
is assessed with respect to its nature and seriousness, surrounding
circumstances, frequency, the willingness of participation, the individual's
age at the time of the incident(s) and the degree of rehabilitation.
Individuals are denied a security clearance if
there are reasonable grounds to believe that the following conditions apply:
•
As it relates to loyalty, the individual is
engaged, or may engage, in activities that constitute a threat to the security
of Canada within the meaning of the CSIS Act.
•
Reliability as it relates to loyalty, because of
personal beliefs, features of character, association with persons or groups
considered a security threat, or family or other close ties to persons living in
oppressive or hostile countries, the individual may act or may be induced to
act in a way that constitutes a "threat to the security of Canada";
or they may disclose, may be induced to disclose, or may cause to be disclosed
in an unauthorized way, classified information.
Classified CSIS
information must not be discussed with an individual without the prior
agreement of CSIS.
[Emphasis added].
CSIS need only be informed of cases in which a
department:
•
Grants a level of clearance other than that which has
been requested.
•
Grants a clearance where a negative assessment
recommendation is involved.
•
Denies, suspends or revokes a clearance.
If as part of a security clearance
assessment, adverse information as defined in paragraph 3 to Appendix B
"Guidance on Use of Information for Reliability Checks" is received,
it may be used to re-assess the individual's previously granted reliability
status. In such cases, departments must conduct their own internal
investigation to determine if a revocation of reliability status is warranted.
In cases where the individual's security
clearance is being denied or revoked on the grounds of loyalty or reliability
as it relates to loyalty, departments must also re-assess the individual's
reliability status.
In all cases that result in a denial or
revocation of either a security clearance or reliability status, departments
must follow those procedures outlined within Sections 5 and 6 of this Standard.
[Emphasis added]
[…]
2.10 Granting or denying a security
clearance
Departments must
assign authority at an appropriate level to grant security clearances. The authority to deny, revoke or suspend
clearances may not be delegated below the level of deputy head.
The decision to grant a
security clearance is recorded on the Security Screening Certificate and
Briefing Form. The requesting office is then advised so that the proposed
appointment or contract may proceed.
All records pertaining to
security clearances are to be retained in standard information bank PSE 909,
except where an alternate bank is identified in Info Source.
If the required level is
denied, Section 42 of the CSIS Act requires that the individual be
advised in writing within 10 days of the decision and also be informed of his
or her right to complain to the Security Intelligence Review Committee (SIRC).
See Section 6 for additional information.
Pursuant to making a
complaint, individuals will be provided with a statement of circumstance by
SIRC.
[…]
5. Revocation
As a result of an update
or a review based on new adverse information concerning an individual, his or
her enhanced reliability status or security clearance may be revoked. The
authority of the deputy head to revoke a security clearance may not be
delegated.
In the event of a
revocation, individuals must be informed of their rights of review or redress
and prohibited from access to sensitive information and assets.
If as the result of a
denial or revocation of a security clearance or reliability status, the
individual no longer meets the condition of employment, departmental Labour
Relations must be
consulted.
If the individual
concerned is on contract, the contract must be terminated. Where the individual
is an employee of a firm, the person must be replaced by another employee of
the contracting firm, otherwise the contract is to be terminated.
In cases involving
security clearance denials, revocations or suspensions, except for members of
the Canadian Forces, deputy heads must consult with the Privy Council Office
before recommending to the Governor in Council the dismissal of any individual
in the interests of national security. If the individual is an employee as
defined in the Public Service Staff Relations Act, deputy heads must also
consult with the Human Resources Policy Branch of the Treasury Board
Secretariat.
When a member of the
Canadian Forces is released in the interests of national security pursuant to
the provisions of the Queen's Regulations and Orders (Chapter 15-Release), the
deputy head must inform the Privy Council Office.
6. Review
and redress
6.1 General
Departments should establish an internal screening review
process to review all relevant information and negative recommendations before
reliability status or a security clearance is denied or revoked.
Individuals must be
informed in writing of their rights of access to review or redress mechanisms
where a decision to deny or revoke reliability status or a security clearance
has been reached. The authorized
officer denying reliability status should consult the security office regarding
the redress mechanisms available in each case in order to fully inform the
individual concerned.
6.2 Reliability status
Employees who wish to
challenge a negative decision based on the results of a reliability check may
do so through current grievance procedures in accordance with Sections 91 and
92 of the Public Service Staff Relations Act. Departments, other than
the Canadian Forces component of the Department of National Defence, must
ensure that reliability check grievances proceed directly to the final level of
the grievance procedure.
Individuals from outside
the Public Service, such as applicants and contractors, may complain to the
Canadian Human Rights Commission, the Public Service Commission's
Investigations Directorate or the Federal Court, Trial Division, according to
the specifics of each case.
6.3 Security clearance
The Canadian Security
Intelligence Service Act
establishes the Security Intelligence Review Committee (SIRC) as the formal
review body in cases concerning denial of a security clearance. Pursuant to Section
42 of the CSIS Act, this right of review is available to outside
candidates, employees and those contracting directly with the government who
are denied a security clearance by a deputy head.
Deputy Heads who
disagree with a security clearance recommendation made by SIRC must consult
with the Privy Council Office (PCO) in reviewing the issue. Deputy Heads must
also inform the Chairperson of SIRC of their final decision in writing.
Consultation with PCO must take place prior to any action to release, demote or
dismiss an individual, notwithstanding the fact that the authority to deny a
security clearance remains with the Deputy Head. This requirement is intended to ensure the thorough review
of the initial reasons for denying, revoking or suspending a security clearance
in those cases where the SIRC recommends granting or reinstating the clearance.
Any individual denied a
security clearance may also file a complaint with the Canadian Human Rights
Commission. If a minister advises the Commission that the basis of the denial
relates to the security of Canada, the Commission may either dismiss the
complaint or refer the matter to SIRC for investigation before proceeding. As
well, individuals may appeal to the Federal Court following the denial of a
security clearance.
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