Docket: T-551-15
Citation:
2015 FC 1101
Ottawa, Ontario, September 22, 2015
PRESENT: The Honourable Madam Justice Kane
BETWEEN:
|
THE
PROFESSIONAL INSTITUTE OF THE
|
PUBLIC SERVICE
OF CANADA AND
|
STÉPHANE AUBRY
|
Applicants
|
and
|
ATTORNEY GENERAL
OF CANADA
|
Respondent
|
ORDER AND REASONS
Overview
[1]
The applicants, the Professional Institute of
the Public Service of Canada [PIPSC], the bargaining agent which represents
35,000 scientists and professionals employed by the Government of Canada, and
Stéphane Aubry, an employee, member of PIPSC and its part-time Vice-President,
seek an interlocutory injunction to prevent the Treasury Board of Canada, on
behalf of the Government of Canada, from implementing the 2014 Standard on
Security Screening [2014 Standard or Standard] pending the final
determination of the applicants’ application for judicial review of the
government’s decision to implement the Standard.
[2]
The applicants’ motion for the interlocutory
injunction targets particular aspects of the Standard, including but not
limited to credit checks, criminal record checks (requiring fingerprinting),
open source inquiries, and requirements to update the employer on changes in an
employee’s status and ongoing monitoring, referred to as “after-care”.
[3]
To succeed on the motion for an interlocutory
injunction, the applicants must establish that a serious issue has been raised,
that the applicants will suffer irreparable harm if the injunction is not
granted and the implementation of the Standard continues, and that the balance
of convenience, which assesses the harm to the applicants, the harm to
respondent and includes an assessment of the public interest, favours the
applicants.
[4]
For the reasons elaborated on below, I find that
the applicants have raised one or more serious issues that will be determined
on judicial review, but have not provided any concrete evidence that
irreparable harm will be suffered by any of the union’s members between now and
the time that the judicial review is finally disposed of.
[5]
The jurisprudence has clearly established that
all three elements of the test for an injunction must be established and that
independent and concrete evidence, rather than general and speculative
assertions of irreparable harm, must be provided. The applicants’ assertion
that the requirement to provide information for a security clearance, by its
very nature, amounts to a loss of privacy overlooks, among other things, the
many safeguards in place to protect the information, including ensuring that it
is not disclosed to anyone other than designated Security Officers within
government departments, and overlooks that many of the measures at issue are
not unprecedented and could have been required under the 1994 Personnel
Security Standard [1994 Standard] and as updated in 2002.
[6]
It should have been a simple matter to provide
an affidavit from Mr Aubry or other members of the union indicating their
position, existing security level and the date of its expiry to establish that
some particular employee(s) would be subjected to the new measures in the
period pending the judicial review and describing the harm that employee would
suffer by submitting themself to the measures at issue. Had such evidence been
provided, the respondent and the Court would have had an opportunity to test
and assess the evidence to determine whether irreparable harm had been
established. Rather, the applicants simply assert that it is a foregone
conclusion or a matter of common sense for the Court to conclude that it is
obvious that some or many of the 35,000 members of its union will be subjected
to the new measures in the near future and will suffer harm.
[7]
The applicants must do more than make assertions
and ask the Court to make assumptions and rely on common sense, rather than on
the law.
[8]
With respect to the balance of convenience, the
relative harm to the applicants and respondent has been assessed and the harm
to the public good has been considered in this context.
[9]
The respondent has established to the
satisfaction of the Court that the 2014 Standard was developed and implemented
in the public interest. The Court need not determine if that is so at this
stage; it is presumed to be so. As a result, enjoining the implementation of
the Standard is assumed to result in harm to the public good.
[10]
The applicants have not offered any evidence to
overcome this assumption and to show that the public interest would be harmed
by continuing to implement the Standard pending the determination of the
judicial review. Nor have they provided concrete evidence of other harm to
them. Information required to be provided by applicants in accordance with the
Standard pending the determination of the judicial review will be safeguarded
and will not be disclosed, redress mechanisms exist, and an employee’s ongoing
employment will not be at risk to any greater extent than under the previous
Standard. The applicants have not established that the harm to them, if the
injunction is not granted, is greater than the harm to the respondents, if the
injunction is granted.
[11]
The government has launched the new Standard and
is in the process of fully implementing it over a 36 month period. Although the
implementation is at an early stage, it is underway. An injunction would halt
the implementation and leave a gap in the modernisation of security screening. The
options proposed by the applicants, including to rely on the former Standard
for those requiring only Reliability status and the 2014 Standard for those
requiring other security clearances, are not feasible given that the 1994 Standard
has been rescinded and the screening for Reliability status is applicable to
all, as it is the starting point or base for all other security levels. The
balance of convenience favours maintaining this status quo.
Background
[12]
On October 20, 2014, the Government of Canada
rescinded the 1994 Standard and launched the 2014 Standard, with a new security
screening model and measures. The 2014 Standard applies to all federal
departments defined in section 2 and all federal agencies included in Schedules
IV and V of the Financial Administration Act, RSC, 1985, c F-11.
Departments and agencies have until October 20, 2017 to fully implement the
Standard.
[13]
The Standard describes its objectives as: to
ensure that government security screening practices are effective, efficient,
rigorous, consistent and fair, and to enable greater transferability of
security screening results between agencies and departments.
[14]
The respondent provided the affidavit of Rita
Whittle, Executive Director of the Security and Identity Management Division
[SIDM], Chief Information Officer Branch of the Treasury Board of Canada
Secretariat, with responsibility for directing the policy activities of SIDM,
including all Treasury Board government security policy instruments, which
includes the 2014 Standard. Ms Whittle describes the development of the
Standard, the key provisions, the differences from the 1994 Standard and the
screening measures which will now be used. Ms Whittle states that she is
principally responsible for the development and implementation of the 2014
Standard. She explains that the implementation process will proceed in stages
and that the readiness of departments and agencies will vary to some extent.
[15]
The 1994 Standard provided for two levels of
Reliability status screening (Basic Reliability and Enhanced Reliability) and
three levels of security clearance screening (Confidential, Secret and Top
Secret). The Basic Reliability status was eliminated following the events of
September 2001. Since 2002, all employees and others subject to the 1994
Standard have been required to undergo Enhanced Reliability screening
(involving a name-based criminal records check and fingerprint-based check if
the name-based check is inconclusive) as the first stage of screening, although
their position and duties may require a higher level of screening. The minimum
level of security screening from 2002 until October 2014 was Enhanced
Reliability status.
[16]
Under the 2014 Standard, there are three levels
of Standard screening (Reliability status, Secret clearance and Top Secret
clearance). Secret and Top Secret screening are for security clearances, as
opposed to a status, and are required for positions with access to government
classified information, assets, facilities or information technology systems. There
are also two levels of Enhanced screening (Enhanced Reliability status and Enhanced
Top Secret clearance).
[17]
Reliability status is now the minimum level of
security screening for all individuals who are employed in the federal public
service and is a prerequisite for all security clearances. Enhanced Reliability
status or Enhanced Top Secret clearance is required for those whose duties
involve or support security or intelligence functions, or when an individual
has access to sensitive information that creates a risk of influence by
criminal or ideologically-motivated persons or organizations.
[18]
Obtaining and maintaining a valid security
status or clearance is a condition of employment, contract, appointment or
assignment. Government employees must give their informed consent to the
security screening.
[19]
The differences between the 1994 Standard and
the 2014 Standard are summarized below. The information is derived primarily
from the affidavit of Ms Whittle. The applicants portray some of the measures
differently in their submissions in support of the injunction.
•
Credit Checks
o Credit checks are now mandatory for all positions and are,
therefore, part of the assessment for Reliability status.
o Credit checks were previously optional for Basic and Enhanced
Reliability status and for Confidential and Secret clearance and could be
conducted when duties or tasks to be performed required it or in the event of a
criminal record, based on the type of offence.
o
Credit checks were previously mandatory for Top
Secret clearance.
•
Law Enforcement Inquiry
o The law enforcement inquiry includes a criminal records check and a
Law Enforcement Records Check [LERC].
o A criminal records check was optional before 2002 and has been
mandatory for all positions since 2002.
o The Royal Canadian Mounted Police [RCMP] is responsible for
conducting criminal records checks and now relies on fingerprints to do so.
o A LERC is a new component of the 2014 Standard to be conducted for
Enhanced screening.
o Previously, some departments, such as the Canada Border Services
Agency, RCMP, and Financial Transactions and Reports Analysis Centre of Canada,
conducted LERCs as part of their screening.
o A LERC searches law enforcement databases to determine if
individuals are known or suspected of being associated with organized crime,
criminality or threats to national security.
o The disclosure of outstanding charges (i.e., where there is no
conviction) could be done on a case-by-case basis under the 1994 Standard,
depending on the type of charge and the employee’s position.
o
The affidavit of Brendan Heffernan, Chief
Superintendent, RCMP, Canadian Criminal Real Time Identification Services
indicates that disclosed criminal history information may include criminal
convictions, absolute and conditional discharges with findings of guilt, and
criminal charges that may be before the courts. Criminal history information
about non-conviction dispositions (e.g., acquittals or withdrawals) may only be
disclosed in exceptional circumstances depending on the criminal history
information and its applicability to the position being screened.
•
Open Source Inquiries
o An open source inquiry involves accessing publicly available
information, such as various internet sources, including social media.
o Open source inquiries were not specifically addressed in the 1994
Standard.
o Open source inquiries are now mandatory for screening for Enhanced
Reliability status and Enhanced Top Secret clearance and optional in specific
circumstances (i.e., on a case-by-case basis) for other screening, including
Reliability status, when negative information is found in the security
screening process.
o
Ms Whittle explains that open source information
is only one of several factors considered during the screening process and the
significance and relevance of the information would be considered.
•
After-care
o After-care reporting refers to the duty to report changes in
circumstances and behaviour.
o Most of these requirements were previously required under the 1994
Standard, including the requirement to attend security briefings and the
requirement for those with security clearances to report changes in
cohabitation or marital status.
o The 2014 Standard requires all employees and others subject to the
Standard to report changes in their criminal record status, association with criminals
and significant changes in their financial situation (such as bankruptcy or
unexpected wealth). Those who work in security and intelligence organizations
may also be required to report changes in personal status, including marital
status.
[20]
The applicants seek this injunction to prohibit
the implementation of particular screening measures in the Standard as they
apply to employees and others requiring Reliability status until the final
disposition of the application for judicial review. The screening measures the
applicants take issue with are credit checks, criminal records checks to the
extent that they involve fingerprinting, law enforcement inquires that involve information
about outstanding charges under the Criminal Code, RSC, 1985, c C-46,
open source inquiries and after-care reporting requirements.
[21]
The applicants do not challenge the screening
measures for employees who require a security clearance or Enhanced screening
to perform their duties and suggest that it should be possible to carve out or
exempt employees requiring only Reliability status from the new measures.
[22]
The respondent highlights that Reliability
status is required for all employees and is the starting point or foundation
for employees who require a security clearance or Enhanced screening: i.e.,
Secret clearance, Top Secret and Enhanced Top Secret clearance, and Enhanced
Reliability status. The respondent submits it is not possible to carve out
those requiring only Reliability status from the new screening measures and
that the applicants’ recent amendment to narrow the scope of its motion for
this injunction does not have the desired result.
The Issues
Should parts of the Applicants’
Affidavit be Struck?
[23]
The respondent notes that the affidavit of
Martin Ranger, submitted by the applicants, contains several paragraphs that
include legal opinion and argument and other paragraphs that extend beyond the
personal knowledge of Mr Ranger. The respondent submits that these paragraphs
should be struck. However, the respondent acknowledges that the applicants did
not rely on the impugned paragraphs of the affidavit in their oral arguments.
[24]
The applicants submit that the paragraphs at
issue were not intended to provide legal opinion, but to provide context for
the applicants’ position. The applicants also note that the information
included in other paragraphs, which the respondent argues is not within the
affiant’s personal knowledge or is hearsay or irrelevant, including the
exhibits attached, has now been provided to the Court, for the most part,
through other means, including as exhibits to the written cross-examination of
Ms Whittle.
[25]
The jurisprudence has established that striking
affidavits at the preliminary stage is exceptional. However, an affidavit or
parts thereof may be struck where it is vexatious or abusive, or contains
conjecture, speculation or legal opinion (Global Enterprises International
Inc v Aquarius (The), 2001 FCT 1311, 214 FTR 269 (FCTD) [Global
Enterprises]).
[26]
In Global Enterprises the Court noted at
para 6:
Generally, affidavits ought not to be struck
out at a preliminary stage. For the sake of efficiency, impugned affidavits
should be left for the trial judge, who may be in a better position to assess
and weigh that evidence. However, there are exceptions to this general
observation, exceptions which involve special circumstance, including where an
affidavit is abusive, or is clearly irrelevant, or where the Court is convinced
that admissibility should be resolved at an early stage, so that the ultimate
hearing might proceed in an orderly manner, or where there is conjecture,
speculation or legal opinion in the affidavit. […].
[27]
In the present case, the affidavit is not
abusive, but it does include paragraphs which should be struck in whole or
part. The context, which the applicants note as the reason for statements in
the affidavit at paragraphs 12, 16 and 17, has been provided to the Court
through the exhibits attached to the affidavit of Ms Whittle and through the
Memoranda of Fact and Law. These paragraphs include legal opinion on the issues
the Court must determine in the application for judicial review.
[28]
Paragraphs 16 and 17 (describing the measures in
the 2014 Standard) are struck in their entirety. Paragraph 12 is struck in
part; the phrase, “much of which is unreasonable and
unnecessary to achieve the objectives of its new Standard on Security
Screening” is struck.
[29]
Paragraphs 19, 20 and 21 are struck because this
information is outside the personal knowledge of the affiant. Paragraphs 22 and
23 are also struck because this information is outside the personal knowledge
of the affiant and because it relates to a different policy, not that which is
the subject of this judicial review.
Should the Interlocutory
Injunction be Granted?
[30]
The parties agree that the test to be applied is
that established by the Supreme Court of Canada in RJR-MacDonald v Canada
(Attorney General), [1994] 1 S.C.R. 311, 111 DLR (4th) 385 [RJR-MacDonald].
This is a three-part test of which each element must be satisfied: the
applicant for interlocutory relief must demonstrate that there is a serious
question to be tried, meaning a question that is not frivolous or vexatious;
the applicant must convince the Court that it will suffer irreparable harm if
the relief is not granted; and, the balance of convenience must be found to
favour the applicant.
[31]
Although the test for establishing a serious
issue is low, the applicants’ and respondent’s positions on the serious issues
raised are described in some detail to provide the context for the other two elements
of the three-part test.
Have the Applicants Established one or more Serious Issues?
The Applicants’ Position
[32]
The applicants submit that the 2014 Standard
provides for the collection of personal information that was not collected
under the 1994 Standard that is not necessary and that will result in an
unjustified loss of privacy. The screening measures are not reasonable or
proportionate despite the measures to safeguard the sensitive information.
[33]
The applicants dispute the rationale advanced by
Treasury Board for the 2014 Standard and submit that the goal of consistency in
security screening does not make the measures reasonable. Nor does the need to
satisfy the international community, including the Five Eyes alliance (the
group of countries that share intelligence in national security matters),
justify the screening measures for employees at the Reliability status level.
The applicants also dispute that Canadians may lose trust in public servants
without new security screening measures.
[34]
The applicants note that interconnected systems
and networks are not new. While the internet was not firmly established in
1994, it was in 2002, yet no changes to the 1994 Standard had been made since
the elimination of Basic Reliability status in 2002. The applicants argue that
if there were serious concerns arising from the increased use of technology,
changes would have been made before 2014.
[35]
The applicants point to specific screening
measures which raise serious concerns and argue that these measures violate the
Privacy Act, RSC, 1985, c P-21, sections 7 and 8 of the Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]
and are an abuse of discretion by the respondent.
[36]
The applicants argue that a credit check is
neither necessary nor effective and is not a proportionate or reasonable
measure. A credit check is not relevant to assessing the loyalty and
reliability of government employees who do not have access to secret or top
secret information and do not have jobs relating to intelligence or security.
The information obtained from a credit check is extensive, private and
sensitive information, and includes a person’s history of loans and mortgages,
bankruptcy proposals, bankruptcy and credit report inquiries. The applicants
note that financial information is part of an individual’s biographical core of
information protected by the right to privacy (R v Cole, 2012 SCC 53 at
paras 47-48, [2012] 3 S.C.R. 34 [Cole]).
[37]
The applicants also assert that if an employee
refuses to consent to a credit check, they will not meet a condition of
employment, which is to obtain Reliability status, and this would result in an
administrative termination of employment.
[38]
With respect to the disclosure of outstanding
charges under the Criminal Code, the applicants submit that the 2014
Standard does not use a case-by-case approach, unlike the 1994 Standard, but
seeks this information from all employees regardless of their position.
[39]
In addition, fingerprints are now required
through the criminal records check for Reliability status. The applicants
submit that most employees will be required to use an authorized police service
or private fingerprinting company to provide their fingerprints and argue that
this exacerbates the aura of criminality arising from the act of
fingerprinting. The applicants distinguish this from the situation of
volunteers who are required to submit to a criminal records check with
fingerprinting because prospective volunteers give informed consent and the
measure is proportionate. The applicants’ view is that name-based record checks
are sufficient and the RCMP should be directed by the respondent to continue
this method.
[40]
The applicants also dispute the respondent’s
reliance on the Auditor General’s recommendations regarding the RCMP’s criminal
record services and the use of fingerprints. The applicants submit that the
Auditor General’s concerns were about fingerprints for criminal justice
purposes. The applicants also dispute that the name-based records checks
resulted in false positives and add that, in such cases, it is preferable to
rely on fingerprints only to resolve such results, rather than as the norm.
[41]
With respect to open source inquiries, the
applicants submit that the search will reveal more than is reasonable or
necessary for an employer. The applicants dispute the respondent’s position
that any breach of privacy is mitigated because only information that is
relevant, reliable and attributable to the individual under review will be retained
in the employee’s security file.
[42]
The applicants also challenge the after-care and
reporting requirements that apply in the five or ten year period between
security screenings. The applicants note this will have a “chilling” effect
despite that only information that raises a concern about loyalty or
reliability would be noted. The applicants add that the scope of reporting is
too broad; only those requiring higher levels of security should be required to
report a change in their criminal record or their association with criminals,
and there is no reason for anyone to report changes in their wealth or marital
status.
[43]
The applicants submit that even if the
information is only provided to or shared with qualified personnel, this does
not respond to the breach of privacy because the information should not be accessed
in the first place.
[44]
The applicants argue that these measures raise
several serious legal issues that should be addressed in the application for
judicial review.
Breach of the Privacy Act
[45]
The applicants submit that the Standard does not
comply with the Privacy Act, particularly section 4, which provides that
personal information shall not be collected unless it relates directly to an
operating program or activity of the institution.
[46]
The jurisprudence establishes that providing an
individual with control over his or her personal information is connected to
individual autonomy, dignity and privacy, and that privacy legislation is
quasi-constitutional, as privacy plays a fundamental role in the preservation
of a free and democratic society (Alberta (Information and Privacy
Commissioner) v United Food and Commercial Workers, Local 401, 2013 SCC 62
at paras 19, 21-22, 24, [2013] 3 S.C.R. 733). The applicants submit that the
unreasonable screening measures deprive employees of this control.
[47]
The applicants argue that the Privacy Act
can be an independent source of legal rights (and note, for example, Bernard
v Canada (Attorney General), 2014 SCC 13 at paras 30-33, [2014] 1 S.C.R. 227 [Bernard];
Zarzour v Canada, [2000] FCJ No 2070 (QL) at paras 23-29, 196 FTR 320
(FCA) [Zarzour]).
[48]
Although section 5.2.3 of the Standard expressly
requires compliance with the Privacy Act, this does not mean that the
Standard does comply. The applicants submit that they have a right to seek a
declaration that Treasury Board has breached or failed to comply with the Privacy
Act.
Breach of Section 8 of the Charter
[49]
The applicants submit that the exercise of
discretion in adopting the Standard must be carried out in a manner that
conforms to the Charter (Canada (Attorney General) v PHS Community
Services Society, 2011 SCC 44 at para 117, [2011] 3 S.C.R. 134).
[50]
The applicants argue that the screening measures
in the Standard violate the reasonable expectation of privacy of employees.
Employees should not have to trade off their privacy rights to become
employees.
[51]
Section 8 prohibits unreasonable search and
seizure and applies in the administrative law context (R v McKinlay
Transport Ltd, [1990] 1 S.C.R. 627 at 647, 72 OR (2d) 798 [McKinlay]; Gillies
(Litigation Guardian of) v Toronto School Board, 2015 ONSC 1038, 125 OR
(3d) 17). The applicants argue that Treasury Board, acting as an employer, is
carrying out a search under section 8 by requiring and collecting personal
information.
[52]
The applicants submit that the reasonableness of
the search must take into account the privacy interests at stake. Section 8 “seek[s] to protect a biographical core of personal
information which individuals in a free and democratic society would wish to
maintain control from dissemination to the state. This would include
information which tends to reveal intimate details of the lifestyle and
personal choices of an individual” (R v Tessling, 2004 SCC 67 at
para 25, [2004] 3 S.C.R. 432 [Tessling], citing R v Plant,
[1993] 3 S.C.R. 281 at 293, [1993] 8 WWR 287). Informational privacy is included
in the definition of privacy (Tessling at para 23).
[53]
The applicants emphasize that the Supreme Court
of Canada has clearly established that privacy is a matter of reasonable
expectations (Cole at para 35) and that even a diminished expectation of
privacy can be a reasonable expectation of privacy (Cole at para 9).
[54]
The applicants submit that the screening
measures in the Standard would require employees to reveal details of their
lifestyle and personal choices, including contacts with police, financial
information, ideology, conduct and associations, and that this amounts to an
unreasonable search.
[55]
The applicants did not pursue the argument that
the Standard violates the privacy protections under section 7 of the Charter
and that this raises a serious issue.
Abuse of Discretion and
Authority
[56]
Abuse of discretion is a basis for Courts to
review the exercise of administrative discretion on the grounds of legality,
reasonableness and fairness (Canada (Attorney General) v TeleZone Inc,
2010 SCC 62 at para 24, [2010] 3 S.C.R. 585; Dunsmuir v New Brunswick, 2008
SCC 9 at para 28, [2008] 1 S.C.R. 190).
[57]
The applicants submit that the Standard and its
screening measures violate the common law of the workplace and amount to an
abuse of discretion and authority by Treasury Board. Treasury Board must
justify the infringement of an employee’s legitimate right to privacy with
clear and compelling evidence and has not done so.
[58]
The applicants rely on several arbitration decisions
to support their argument that the common law of the workplace requires that
the employer not exercise its discretion in a manner that is overly privacy
invasive, including Vancouver (City) v Canadian Union of Public Employees
Local 15, [2007] BCCAAA No 216, 91 CLAS 298; Winnipeg (City) v Canadian
Union of Public Employees Local 500, [2002] MGAD No 21; Canada Post Corp
v Canadian Union of Postal Workers (CUPW 730-85-00037), [1988] CLAD No 12,
34 LAC (3d) 392; and, Ottawa (City) v Ottawa Professional Firefighters Assn,
[2007] OLAA No 731, 169 LAC (4th) 84.
[59]
The applicants also note that the Supreme Court
of Canada has confirmed, in the context of alcohol and drug testing in the
workplace, that employers can only impose rules where “the
need for the rule outweighs the harmful impact on employees’ privacy rights”
(Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving
Pulp & Paper, Ltd, 2013 SCC 34 at para 4, [2013] 2 S.C.R. 458).
The Respondent’s Submissions
[60]
The respondent notes that the determination
whether a serious issue has been raised and the other aspects of the three-part
test must be considered in the appropriate context.
Context
[61]
The respondent notes that security screening
began in the 1940s. Cabinet Directives established in the 1950s and 60s
provided guidance until the issuance of the Treasury Board Policy on Government
Security in 1986 (1986 Policy) and the 1994 Standard. The 1994 Standard was
rescinded in 2014. The 2014 Standard reflects modernisation; some of the same
screening measures remain, while others have been modified or are new.
[62]
The 2014 Standard is essential to maintain trust
between the government and citizens and between the government and other
stakeholders, including foreign governments.
[63]
The level of security screening under the
Standard will depend on the sensitivity of the information an employee will
have access to; however, all employees must be screened for Reliability status.
Reliability status underpins all other security levels.
[64]
The respondent notes that those with Reliability
status have access to a wide range of information, information technology
systems and unescorted access to facilities. Those with Reliability status
perform duties and activities which could give them access to a great deal of
information that is provided and retained for a range of government programs.
It is essential to ensure that employees responsible for programs and services
can be trusted with the information they have access to.
[65]
The affidavit of Ms Whittle describes the need
for the new Standard, including the evolving nature of threats to the security
of Canada, particularly since 2001, and the need to provide assurances to the
Five Eyes intelligence-sharing community that Canada’s security policy is
analogous to the policies of other members of the community.
[66]
The Standard also reflects the evolution in the
workplace, including open work spaces, significant reliance on technology, the
interconnected networks that employees have access to and the increased use of
social media. In addition, the establishment of Shared Services Canada, which
merges many services for government departments, results in data being accessed
by more employees.
[67]
Ms Whittle also provided exhibits indicating
that the development of the Standard dates back to a 2003 survey regarding
screening of personnel conducted by the Privy Council Office and includes the
results of a subsequent task force, which made recommendations to modify the
security screening regime.
[68]
The respondent notes that there was no oral cross-examination
of Ms Whittle; however, written answers and exhibits were provided. Her
evidence of the development of the Standard and the need it meets is,
therefore, uncontradicted.
No Serious Issue
[69]
The respondent argues that the applicants have
not raised any serious issue.
[70]
The respondent highlights that the information
provided by an employee is not accessible to anyone other than the qualified,
trained personnel responsible for security in a department, for example, the
Departmental Security Officer, who is tasked with conducting the assessment. These
professionals do not disclose the information gathered to the manager or anyone
else.
[71]
The respondent notes that the applicants have
misconstrued some of the screening measures and their applicability.
[72]
Credit checks are not new measures, as these
were included in the 1994 Standard, but are now mandatory. The credit check is
done by a credit reporting agency, but the agency will “mask” the inquiry so it
will not be apparent that the inquiry was made.
[73]
The respondent contests the applicants’
assertion that refusal to consent to a credit check would result in an
administrative termination of employment. The policy simply provides that the
cancellation of a person’s security status or clearance could result in termination
of employment; however, there would be opportunities for explanation and
several factors would be considered to determine whether the security status or
clearance could be granted. In addition, there are redress mechanisms.
[74]
The respondent notes that the 2014 Standard
requires a criminal records check, but the Standard does not specify a method
and does not require that criminal records checks be conducted by
fingerprinting. The RCMP is responsible for performing criminal records checks
under the Standard and has adopted, effective July 2015, a fully electronic,
fingerprint based, criminal records check model to identify the person and the
record. The affidavit of Chief Superintendent Heffernan explains the reasons
for doing so, including the recommendations of the Auditor General that
fingerprints are an international best practice, their accuracy and their
expediency. The respondent notes that the RCMP’s decision to require
fingerprinting for criminal records checks is not at issue in the judicial
review.
[75]
In addition, the requirement for fingerprinting
by a third party is not new; both the 1986 Policy and the 1994 Standard
provided for fingerprinting in some circumstances as part of the criminal
records check and, when required, fingerprints could be taken at an RCMP office
or local police station.
[76]
The respondent adds that the Auditor General’s
2000 and 2004 reports do in fact refer to fingerprinting in the employment
security screening context.
[77]
With respect to the disclosure of outstanding
criminal charges, the respondent submits that the applicants have misconstrued
the requirements; the 2014 Standard does not require disclosure. The RCMP would
only disclose non-conviction information as part of a criminal records check in
exceptional circumstances, as explained in the affidavit of Chief
Superintendent Heffernan. The respondent notes that this evidence is
uncontradicted.
[78]
The release of criminal records information
under the Standard is governed by the Criminal Records Act, RSC, 1985, c
C-47, the Youth Criminal Justice Act, SC 2002, c 1), the Privacy Act,
the Criminal Code and directives from the Minister of Public Safety. The
respondent also notes that a LERC is only required for Enhanced screening.
[79]
With respect to open source inquiries, the
respondent submits that such inquiries could have been undertaken previously as
there was no prohibition and the information is publicly available. Now open
source inquiries are specifically addressed, but are mandatory only for
Enhanced screening and are optional for screening for Reliability status, as part
of after-care or for cause. The respondent adds that if there is a risk of
behaviour or association with others that may pose a security risk or make a
person vulnerable, it would be risky not to check the publicly available
information.
[80]
After-care reporting is intended to ensure that
in the ten year period between screenings there is no change in the employee’s
ability to do their job and perform their duties in a reliable and trustworthy
manner. After-care was part of the 1994 Standard. The 2014 Standard seeks to
standardize the measure.
[81]
The respondent submits that the applicants have
not raised a serious issue; the Standard and the screening measures at issue do
not violate the Privacy Act or Charter and do not reflect an
abuse of discretion.
Breach of the Privacy Act
[82]
The respondent notes that the Standard
specifically requires compliance with the Privacy Act and there is no
evidence that it violates the Privacy Act.
[83]
Recourse for a breach of the Privacy Act can
be sought by filing a complaint to the Privacy Commissioner with respect to the
collection, retention, disposal, use or disclosure of personal information held
by a government institution (Privacy Act at para 29(1)(h)). The only
recourse to the Federal Court provided under the Privacy Act is for
individuals who are refused access to their information and who have made a
complaint with the Privacy Commissioner (section 41).
[84]
The respondent submits that the jurisprudence
relied on by the applicants to support their argument that the Privacy Act
can be an independent source of legal rights and that declaratory relief
against alleged violations of privacy rights can be granted arose from
different circumstances and focussed on how government institutions handled the
information in their possession.
[85]
The respondent agrees that section 4 of the Privacy
Act provides that personal information should not be collected unless it
relates to an operating program and submits that the Standard is such a
program. The Standard sets out how personal information will be handled and
includes safeguards.
[86]
The respondent refers to Appendix C of the
Standard which describes the collection, use, disclosure, retention and
disposal of personal information for the purpose of security screening. These
activities must be carried out in compliance with the Privacy Act and
with other applicable legislation, policies, directives, standards and
guidelines.
[87]
The respondent disputes the applicants’ argument
that simply collecting the information constitutes a violation of an employee’s
privacy.
Section 8 of the Charter
[88]
The respondent submits that although the
screening measures may be more rigorous than they were previously, this does
not make them unreasonable (Reference re Marine Transportation Security
Regulations, 2009 FCA 234 at para 66, 395 NR 1 [Marine Transportation
Reference]).
[89]
The Federal Court of Appeal determined that
screening measures analogous to those at issue were not overly intrusive and
were not unreasonable in Marine Transportation Reference. Given that
similar considerations exist in the present case, the respondent submits that
there is no serious issue raised with respect to section 8, as it has already
been decided.
[90]
The Standard demonstrates a balance between the
privacy protections of the Charter and the legitimate objective of the
government to maintain the integrity of its information, assets and facilities,
which enables the government to deliver programs and services to Canadians and
to advance Canada’s interests (including national security). The Standard
affects the applicants’ right to privacy as little as reasonably possible to
achieve this objective.
[91]
The respondent notes that context determines
whether a reasonable expectation of privacy is held (British Columbia Securities
Commission v Branch, [1995] 2 S.C.R. 3 at para 51, 123 DLR (4th) 462 [Branch];
McKinlay at 646; R v Jarvis, 2002 SCC 73 at paras 63, 69-72,
[2002] 3 S.C.R. 757) and what is reasonable will differ in the criminal and
administrative law contexts (Branch at para 52).
Section 7 of the Charter
[92]
The respondent submits that there is no serious
issue to be tried regarding a breach of section 7 of the Charter and
notes that the applicants did not pursue this argument. In Marine
Transportation Reference at para 44, the Federal Court of Appeal found that
protection from unreasonable search is specifically provided for under section
8 and that such issues are therefore not appropriately considered under section
7.
Abuse of Discretion and
Authority
[93]
The respondent characterizes the applicants’
allegations of abuse of discretion as bald and unsupported by any evidence or
arguments.
[94]
Treasury Board is the employer and acts pursuant
to the Financial Administration Act, but its role extends beyond human
resources management. It has the authority to make policy regarding the
administration of the government and did not abuse its discretion in doing so.
The respondent again notes that the evidence of Ms Whittle explains the
development of and rationale for the Standard and is uncontradicted.
[95]
The respondent submits that there is a clear
rationale for the Standard that is defensible in respect of the facts and law
and, therefore, it meets the reasonableness standard of review.
[96]
The respondent distinguishes the arbitration
decisions cited by the applicants because they did not involve employment with
the government and, in many of the cases, the policies were highly intrusive
and involved physical invasions of the employees’ bodily integrity or property.
The 2014 Standard does not include such measures.
The Applicants have Established one or more Serious Issues
[97]
As noted above, the first stage of the RJR-MacDonald
test is whether there is a serious issue to be tried, as described at 348:
At the first
stage, an applicant for interlocutory relief in a Charter case must
demonstrate a serious question to be tried. Whether the test has been satisfied
should be determined by a motions judge on the basis of common sense and an
extremely limited review of the case on the merits. The fact that an appellate
court has granted leave in the main action is, of course, a relevant and
weighty consideration, as is any judgment on the merits which has been
rendered, although neither is necessarily conclusive of the matter. A motions
court should only go beyond a preliminary investigation into the merits when
the result of the interlocutory motion will in effect amount to a final
determination of the action, or when the constitutionality of a challenged
statute can be determined as a pure question of law. Instances of this sort
will be exceedingly rare. Unless the case on the merits is frivolous or
vexatious, or the constitutionality of the statute is a pure question of law, a
judge on a motion for relief must, as a general rule, consider the second and
third stages of the Metropolitan Stores test.
[98]
In the present case, a stay in the
implementation of the Standard will not necessarily result in the Standard
never coming into force, but it would halt its implementation now and delay it
pending final determination of the judicial review. Therefore, the result of
this motion will not amount to a final determination of the issues. The Court
is not required to go beyond a preliminary investigation of the merits, as this
is the role of the judge who will determine the application for judicial
review.
[99]
The applicants have raised three issues. Based
on a preliminary assessment, none of the issues can be found to be frivolous or
vexatious, although they may not ultimately be found to be meritorious on
judicial review.
Breach of the Privacy Act
[100] The Standard is required to comply with the Privacy Act in
its application and employees would be able to make a complaint to the Privacy
Commissioner with respect to particular instances of non-compliance. The
complaint process would not address whether the Standard as a whole complies
with the Privacy Act, particularly given the uncertainty as to whether
the Privacy Impact Analysis was completed before the Standard was implemented.
[101] As noted by the respondent, the jurisprudence relied on by the
applicants to support their argument that declaratory relief can be granted
pursuant to the Privacy Act is not persuasive. In Zarzour, the
Court of Appeal noted the obligations on the Parole Board to respect the
information it held, in accordance with the Privacy Act, and in Bernard
the focus was on whether the information held by the union was consistent with
the purpose for which it was obtained.
[102]
Regardless, the issue of whether the 2014
Standard complies with the Privacy Act should be fully canvassed on the
judicial review.
Section 8
[103] In Harper v Canada (Attorney General), 2000 SCC 57, [2000] 2
SCR 764 [Harper], the Supreme Court of Canada applied the three-part
test from RJR-MacDonald and commented on the serious issue branch at
para 4:
[…] Without prejudging the appeal, we are
satisfied there is a serious issue to be tried. The issue is no less than the
constitutionality of provisions of the electoral law passed by the Parliament
of Canada which no court has held to be invalid. This is a serious issue not
only because the constitutionality of the provisions is challenged, but because
it is common ground that the determination of the constitutionality will turn
on the application of s. 1 of the Charter, which is always a complex factual
and legal analysis. […]
[104] Similarly in the present case, the determination as to whether the
screening measures in the Standard violate section 8 requires a more detailed
analysis.
[105] Section 8 of the Charter provides that “everyone has the right to be secure against unreasonable
search or seizure.”
[106] The applicants assert that their reasonable expectation of privacy
is infringed by the Standard. However, this determination requires more than
simply the assertion of the applicants that there is a reasonable expectation of
privacy in all the information sought and that the requirement to provide this
information is not justified. A subjective expectation of privacy is not
determinative of a reasonable expectation of privacy. What is reasonable will
be informed by the context and the balancing of the competing interests at
play.
[107] The applicants relied on McKinlay with respect to the
subjective expectation of privacy. In McKinlay, the Court found that the
requirement to comply with a demand to provide documents pursuant to the Income
Tax Act, RSC, 1985, c 1 (5th Supp) constituted a seizure because it
infringed the reasonable expectation of privacy of those required to comply,
but went on to find that there was no breach of section 8.
[108] The Court noted at 645 that “individuals have
different expectations of privacy in different contexts and with regard to
different types of information and documents” and, therefore, what is
reasonable will depend on the context. The Court noted that only unreasonable
searches infringe section 8.
[109] In Cole, the Supreme Court of Canada held that “[i]f the claimant has a reasonable expectation of privacy,
s. 8 is engaged, and the court must then determine whether the search or
seizure was reasonable” (at para 36).
[110] However, whether a person has a reasonable expectation of privacy
depends on the “totality of the circumstances” (at para 39). The Court noted
the considerations at para 40:
The “totality of the circumstances” test is
one of substance, not of form. Four lines of inquiry guide the application of the
test: (1) an examination of the subject matter of the alleged search; (2) a
determination as to whether the claimant had a direct interest in the subject
matter; (3) an inquiry into whether the claimant had a subjective expectation
of privacy in the subject matter; and (4) an assessment as to whether this
subjective expectation of privacy was objectively reasonable, having regard to
the totality of the circumstances (Tessling, at para. 32; Patrick,
at para. 27). I will discuss each in turn.
[111] In assessing whether a subjective expectation of privacy is
objectively reasonable, the Court in Cole noted that the closer the
subject matter of the search lies to a biographical core of information, such
as information that reveals details of the lifestyle and personal choices of
the person, the more this will favour a reasonable expectation of privacy (at
paras 44-46).
[112] Although the information required pursuant to the screening measures
can be characterized as part of the biographical core of personal information
that one may wish to protect, that is not determinative of the reasonableness
of the “search”. The determination of whether the search is reasonable is more
complex and will involve a balancing of factors (Harper at para 4).
[113] The Court on the judicial review will determine the scope of the
reasonable expectation of privacy in the relevant context, whether the search
was authorized and whether the policy is reasonable, which includes balancing
the privacy interests and the government’s objectives in adopting the 2014
Standard.
[114] Marine Transportation Reference considered
screening measures, similar to some of those in the 2014 Standard, and
concluded that the information required to be gathered was not overly intrusive
and that, considering the purpose of the measures and the risks addressed, it
was not an unreasonable search and did not violate section 8 (at para 69).
[115] While Marine Transportation Reference will be very relevant
to the determination of the section 8 issue on judicial review, I do not share
the respondent’s view that it has determined the serious issue raised by the
applicants once and for all. The 2014 Standard and its broad application
differs from the screening measures applicable to ports’ employees who worked
in an environment requiring heightened security at all times and whose concerns
extended to the sharing of their information with others. In Marine
Transportation Reference, the Court of Appeal noted the considerations in
the balancing of employees’ interests in privacy and the public interest served
by the regulations which imposed the security measures. These include
contextual factors: the strength of the privacy interests at stake (at para
50); the manner of the search (at para 51); that administrative searches are
less intrusive than those conducted for a criminal investigation (at para 52);
and how pressing the public interest is and to what extent the information
sought is likely to further the intended purpose (at para 53). The same or
similar considerations would be part of the balancing in the present case.
[116]
With respect to section 7 of the Charter,
I agree with the respondent that, following Marine Transportation Reference,
there is no serious issue to be tried on whether there is an independent
section 7 claim (and the applicants appear to have abandoned this argument).
Abuse of Discretion and Authority
[117] The respondent’s rationale for the development of the Standard and
the need that it meets has been explained in the affidavit of Ms Whittle and is
uncontradicted. The respondent again notes that the Standard responds, among
other things, to a survey conducted in 2003 and a later task force, and that
consultations were undertaken in the process of developing the Standard.
[118] Although the applicants simply assert that the Standard is an abuse
of discretion or authority, and provide no evidence to support this assertion,
the issue cannot be characterized as frivolous. The applicants should have an
opportunity to fully advance their argument on judicial review.
[119] As noted by the applicants, the threshold to establish a serious
issue is low and unless the case on the merits is frivolous or vexatious, the
second and third elements of the test will be determinative.
Have the Applicants Established Irreparable Harm?
The Applicants’ Submissions
[120] The applicants submit that if the injunction is not granted and the
judicial review is successful, employees of the federal government will suffer
irreparable harm. They are required to consent to provide privacy-invasive
information as a condition of their continued employment. The applicants submit
that their consent cannot be considered voluntary because a valid security
clearance is a condition of employment. If an employee refuses to consent, they
will not be considered for the position, or in context of a renewal or update
of their security status, a cancellation of their security clearance would lead
to administrative termination.
[121] The applicants submit that privacy violations are inherently harmful
and this harm would be irreparable because once lost, privacy cannot be
regained. As a result, the harm must be prevented. The applicants note that in R
v Dyment, [1988] 2 S.C.R. 417 at 430, 55 DLR (4th) 503, the Supreme Court of
Canada held that “if the privacy of the individual is
to be protected, we cannot afford to wait to vindicate it only after it has
been violated.”
[122] The applicants point to Bisaillon v Canada, [1999] FCJ No 898
(QL) at para 34, 251 NR 225 (FCA), where the Federal Court of Appeal found
that the loss of privacy in turning over tax documents to Revenue Canada
pending the final outcome of a challenge to Revenue Canada’s right to access
those documents was a loss of privacy constituting irreparable harm. In the
present case, turning over personal information for security screening purposes
would be a loss of privacy constituting irreparable harm.
[123] The applicants also point to the decision of the Supreme Court of
Canada in 143471 Canada Inc v Quebec (Attorney General), [1994] 2 SCR
339, 31 CR (4th) 120 [143471 Canada], where the Court found that if the
constitutional allegations turned out to be correct, then the loss of privacy
itself would constitute irreparable harm (at 380). The applicants argue that
this principle applies regardless of the fact that the search at issue in 143471
Canada was intrusive; the intrusiveness of the search was noted by the
Court only as additional factor.
[124] The applicants argue that if they are correct and the 2014 Standard
violates the Charter, irreparable harm is established.
[125] The applicants also refer to several cases where courts and
arbitrators have granted interim injunctions to protect the privacy rights of
employees pending the final outcome of a challenge to a policy of an employer.
[126] The applicants argue that International Longshore and Warehouse
Union, Canada v Canada (Attorney General), 2008 FCA 3, 371 NR 357 [Longshore]
(the interlocutory order denying a stay of the legislation in the Marine
Transportation Reference proceedings) is distinguishable. Although the
Court found no evidence of irreparable harm, in that case the issue was
discipline and loss of jobs, which are compensable (at paras 23-24, 35).
[127] In the present case, the applicants note that their concern is not
about the implications for employment but simply the harm from the breach of
privacy itself.
[128] If the injunction is not granted, employees will be required to
submit to credit checks and fingerprinting, and will have to continually advise
the employer of their associations with particular people or their personal
status. This engages very real privacy interests of public servants. The
applicants argue that there is no remedy to repair this unauthorized invasion
of privacy.
[129] The applicants dispute the respondent’s argument that irreparable
harm has not been established and that the affidavit of Mr Ranger does not
provide any such evidence. The applicants point out that the Standard states
that it will be implemented. Fingerprinting measures already commenced on July
1, 2015. Clearly union members will be subjected to the screening measures. The
fact that other measures have not yet been implemented does not make the
application for judicial review or the motion for an injunction speculative.
[130] In response to questions from the Court about why there is no
evidence from a member of the union who will be subject to the new screening
measures describing the irreparable harm that person will suffer before the
application for judicial review is determined, the applicants advised that it
would have been possible to provide such evidence, but that common sense can be
relied on to establish that, out of 35,000 members who are required to have
their security clearance renewed every ten years, some or many will be
subjected to the Standard now or in the near future. They are also all required
to report changes to personal circumstances and are subject to ongoing
monitoring. The applicants add that Mr Aubry would either be subject to the
Standard in this period for the purpose of renewal of his status or due to the
ongoing monitoring and reporting requirements, such as the open source
inquiries or mandatory reporting of changes to his personal circumstances. The
applicants submit that it is obvious that Mr Aubry and others will suffer
irreparable harm.
[131] The applicants add that it would be unreasonable to require the
union to set out which of its members will undergo security screening before
the judicial review is decided. The applicants claim that the union has no
record of the security status of each of its members, but suggest that only 10%
would require more than Reliability status. The applicants caution that if the
Court finds that there should be actual evidence of irreparable harm, it will
file a new application and bring another motion for an injunction in the
context of an individual member who is required to be screened.
[132] The applicants also argue that it is not necessary for them to
establish actual harm resulting from the screening measures. In the applicants’
words, the employer should not be “nosing around.” The applicants’ affidavit
does not need to address actual harm because irreparable harm arises
automatically from the application of the Standard and the search itself. The
applicants question what would be added by providing an affidavit of an
employee who will be screened.
The Respondent’s
Submissions
[133]
The respondent acknowledges that it is the
nature, not the magnitude, of the harm that is relevant (RJR-MacDonald
at 348). The irreparable harm to the party seeking the injunction must be
established, i.e., to the applicants, and the harm at issue must result from
the implementation of this policy, i.e., the 2014 Standard. In addition,
specific and concrete evidence of actual harm must be adduced (Glooscap
Heritage Society v Canada (Minister of National Revenue), 2012 FCA 255 at
para 31, 440 NR 232 [Glooscap]).
[134] The respondent submits that in the present case, no evidence of
irreparable harm has been provided. The applicants only assert a general loss
of privacy arising from the implementation of the Standard. A general assertion
cannot establish irreparable harm (Gateway City Church v Canada (National
Revenue), 2013 FCA 126 at para 15, 445 NR 360 [Gateway]).
Allegations of speculative invasions of privacy do not independently establish
irreparable harm (Longshore at paras 26, 33).
[135] The respondent notes that the Standard also provides that security
screening is to be conducted every five or ten years, depending on the level of
clearance; however, the applicants provided no evidence that union members will
undergo security screening between now and the determination of the application
for judicial review. Consequently, the Court cannot conclude that the
applicants will suffer irreparable harm before the hearing on the merits.
[136] The respondent clarifies that its position is not that the
applicants must account for the security screening status of each union member;
it is rather that the applicants must provide evidence of irreparable harm with
respect to some member(s). The respondent notes that the affidavit of Mr Ranger
does not address the irreparable harm alleged. It only refers to a negative
impact on employment. There is no affidavit from the applicant, Mr Aubry,
indicating the harm he will suffer, if any, nor is there an affidavit from any
other member of the union.
[137] The respondent submits that 143471 Canada, relied on by the
applicants, does not establish as a general proposition that a loss of privacy
necessarily constitutes irreparable harm. In that case, the irreparable harm
flowed from the manner in which the privacy interest was compromised, which
involved searches of private homes and seizure of documents. The Federal Court
of Appeal has considered 143471 Canada in other more recent cases. In Canada
(Attorney General) v Canada (Information Commissioner), 2001 FCA 26 at para
22, 12 CPR (4th) 492 [Information Commissioner], the Court of Appeal
noted that a different conclusion may have been reached if the information had
been obtained by less intrusive means.
[138] The respondent notes that the 2014 Standard involves obtaining
information only for security screening purposes and does not involve bodily
searches or forced disclosure of documents, as the cases cited by the
applicants did.
[139] In Marine Transportation Reference, the Federal Court of
Appeal rejected a union’s argument that new security screening measures, which
required employees to provide similar information to that required by the 2014
Standard, infringed the employees’ privacy rights. The Court of Appeal found
that demands for personal information and fingerprints are among the least
intrusive forms of search (at para 61).
[140] Similarly, the Supreme Court has recognized that fingerprinting is
“insubstantial,” “leaves no lasting impression” and may be legitimately used
for a wide variety of purposes (R v Rodgers, 2006 SCC 15 at paras 41,
51, [2006] 1 S.C.R. 554, citing R v Beare, [1988] 2 S.C.R. 387 at 413, 55
DLR (4th) 481). The respondent submits that the same conclusion of minimal
intrusiveness applies in the present case.
[141] The respondent submits that the mere collection of information does
not establish a violation of privacy interests and that the applicants’
allegations that their right to privacy will be breached once the information
is collected is speculative (Information Commissioner at para 21).
[142] Many aspects of the 2014 Standard, such as the guidelines on the
financial assessment questionnaire, and on the security questionnaire and
interviews, have not been finalized. The respondent disputes the applicants’
assumption that these guidelines will violate their privacy rights rather than
protect them. There are many checks and balances in the Standard to protect the
information provided.
[143] The respondent also points to its adoption of best practices for the
collection, use and disposal of personal information obtained under the
Standard. Only authorized and qualified personnel have access to the
information on a need-to-know basis. The respondent reiterates that credit
checks will be masked and will not affect the employee’s credit rating,
fingerprints will be automatically destroyed, information about outstanding
charges will be disclosed only in exceptional circumstances, open source
inquiries are of already public information, and the information gathered by an
open source inquiry is used only to assess reliability and loyalty and would be
reviewed only by the Security Officer who is qualified and trained. The
Standard also includes redress and review mechanisms for addressing errors or
concerns that may arise in a security screening. In a similar context, in Marine
Transportation Reference, the Federal Court of Appeal found that these
mechanisms appropriately address concerns about possible errors. The respondent
argues that these measures undermine the applicants’ claims regarding
irreparable harm.
[144] The respondent argues that the applicants have failed to provide
concrete, non-speculative evidence that the alleged harm will occur before the
application is heard. Without any evidence from a member of the union who has
or will be required to undergo screening for Reliability status, the respondent
is denied the opportunity to test the evidence and probe the alleged harm.
[145] The respondent also adds that the applicants cannot simply assert
that they will bring another motion with the necessary evidence of irreparable
harm. The applicants should have “put their best foot forward” in this motion.
The Applicants Have Not Established Irreparable Harm
[146] In RJR-MacDonald, the Supreme Court of Canada described
irreparable harm at 348:
At the second stage the applicant must
convince the court that it will suffer irreparable harm if the relief is not granted.
`Irreparable' refers to the nature of the harm rather than its magnitude. In
Charter cases, even quantifiable financial loss relied upon by an applicant may
be considered irreparable harm so long as it is unclear that such loss could be
recovered at the time of a decision on the merits.
[147] The applicants’ position remains that the mere provision of
information is a loss of privacy which cannot be restored and that this is
harmful on its own, regardless of the rationale for the screening measures and
the protections in place to safeguard that information.
[148] The applicants rely on 143471 Canada to support their
argument that if they are ultimately successful on judicial review and the
Court agrees that aspects of the Standard violate section 8, then the loss of
their privacy now (before the issue is ultimately decided) constitutes
irreparable harm.
[149] In 143471 Canada, decided shortly after RJR-MacDonald,
the Supreme Court of Canada applied the three-part test in the context of
searches and seizures of tax information, which extended to searches of private
homes. On the issue of irreparable harm, Justice Cory, writing for the majority
in this 4:3 decision, stated at page 380:
The purpose of an interlocutory stay is to
preserve the rights of applicants (the respondents before this Court) pending a
final determination of a legal question which will affect those rights. Here,
the respondents seek not the return of their documents, but simply the
maintenance of the orders that they be held by the court pending the determination
of this issue. If it is found that the respondents are correct and that the
searches and seizures were unconstitutional, then the privacy right will have
effectively been lost as a result of the unconstitutional provisions of the
Act. Small as it may be, there is such a privacy interest. If it transpires
that the respondents are correct in their constitutional contention, then I
would think that the loss of that privacy interest would, in itself, constitute
irreparable harm.
[Emphasis added]
[150] However, Justice Cory said more than this and the applicants’
reliance on only this paragraph does not, in my view, establish that the
possibility that an allegation of a breach of section 8 may be resolved in
favour of the applicants is sufficient to establish irreparable harm, without
any other evidence of such harm.
[151] In the following paragraph of 143471 Canada, at page 380,
Justice Cory added: “Yet there is another aspect which
I consider to be far more significant in this case. Namely, that the documents were
obtained by means of intrusive searches of residential and business premises.”
[152] While the applicants characterize this as simply an additional
factor which does not detract from the principle set out above, the preceding
and following paragraphs make it clear that this was not simply an additional
consideration, but a consideration which influenced Justice Cory’s ultimate
conclusion. His comment that “I would think that the
loss of that privacy interest would, in itself, constitute irreparable harm”
is slightly tentative. In the following paragraph, Justice Cory notes the
intrusiveness of the searches, including in private homes. The conclusion, at
page 381, confirms that the nature of the search was more than an additional
factor, and was a significant factor in finding irreparable harm on the facts
of that case:
The constitutionality of ss. 40 and 40.1 of An
Act respecting the Ministère du Revenu will be determined in the principal
applications to quash the warrants. Should those sections eventually be found
to be unconstitutional, then the searches and seizures will have violated the
privacy interest of the respondents in their homes and offices. The government
will, without authority, have entered the premises and searched for and seized
the documents. Thus the government will have had the continuing possession of
the documents in the absence of any authority and in violation of the Charter.
This, it seems to me, would constitute irreparable damage to the respondents.
[153]
The dissenting judges took a different view
regarding the finding of irreparable harm. Justice La Forest commented at page
361:
However, the
present case can be distinguished from Dyment, where the respondent was
challenging the seizure of a bodily fluid without prior authorization. The respondents
are objecting here to the examination by the tax authorities of the contents of
business documents the seizure of which was previously authorized. The
existence of irreparable harm cannot be inferred simply because a breach of a
right protected by the Charter is alleged or because the main proceeding itself
involves the infringement of an entrenched right. In the present case not only
have the courts not yet made a final ruling on whether the searches are
unreasonable, but the Quebec Superior Court dismissed the motion in evocation,
certiorari and mandamus in the 143471 Canada Inc. case. It seems
wrong to conclude as a matter of principle that the right to privacy must in
all circumstances take priority over any other interest, for example over giving
effect to legislation adopted in the public interest. Both the right and
the alleged infringement must be placed in context: see United States of
America v. Cotroni, [1989] 1 S.C.R. 1469, and Edmonton Journal v.
Alberta (Attorney General), [1989] 2 S.C.R. 1326. Accordingly, before
concluding that the harm is "irreparable", as required by the second
criterion, the existence and extent of the harm must be determined,
something which the Court of Appeal seems to have failed to do in the case at
bar since it simply said that the seized documents might [translation]
"contain personal items of information and so contravene the protection of
privacy guaranteed by law" (p. 45 R.D.F.Q.).
[Emphasis
added]
[154] The Federal Court of Appeal has specifically commented on 143471
Canada and has found that irreparable harm must be established
independently of arguments regarding the constitutionality of the measure at
issue and cannot be inferred based on a potential Charter breach that
has yet to be determined. This view, which favours those of the dissenting
justices in 143471 Canada, has been confirmed in several decisions.
[155] In Information Commissioner, the Court of Appeal noted (at
paras 12, 22) that irreparable harm cannot be speculative and that 143471
Canada was decided in the context of an intrusive search:
[12] First, the fact that irreparable
harm may arguably arise does not establish irreparable harm. What the
respondents had to prove, on a balance of probabilities, is that irreparable
harm would result from compliance with the subpoenas issued on behalf of the
Commissioner (Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd.,
[1987] 1 S.C.R. 110 at para. 35). The alleged harm may not be speculative or
hypothetical (Imperial Chemical Industries PLC v. Apotex Inc., [1990] 1
F.C. 211 (C.A.)).
[…]
[22] The decision of the Supreme Court
in 14371 Canada Inc. v. Québec [A.G.], [1994] 2 S.C.R. 339 [sic] brought
to our attention by the respondents rested on an entirely different set of
facts. It dealt with intrusive searches of residential and business premises by
the tax authorities under constitutionally suspect statutory authority. The
Court in its reasons noted on more than one occasion that searches of private
property are far more intrusive than a demand for production of documents,
thereby giving rise to a greater need for the protection of the privacy
interests of those concerned (see pages 380, 381 and 382). That is the context
in which the majority concluded that irreparable harm would result if the
seized documents were reviewed by the tax authorities, pending the
determination of the constitutional validity of the seizure. It is clear
that a different conclusion would have been reached if the information in issue
had been obtained by less intrusive means.
[Emphasis added]
[156] In Groupe Archambault Inc v Cmrra/Sodrac Inc, 2005 FCA 330,
357 NR 131, the Court of Appeal acknowledged its preference for the views of
the dissenting justices in 143471 Canada. Similar to the arguments in
the present case, the applicants relied on 143471 Canada to argue that
the infringement of its constitutional right to privacy was irreparable harm in
and of itself. The Court of Appeal referred to its own decision in Information
Commissioner and concluded at para 16:
In my opinion, the mere allegation of an
infringement of section 8 is insufficient to establish irreparable harm. This
Court’s interpretation of 143471 Canada Inc. Canada (Attorney General) v.
Canada (Information Commissioner) appears to me to be consistent with the
opinions of the dissenting justices on the issue of irreparable harm. Thus, the
applicant has not proven irreparable harm.
[157] In Longshore, the Court of Appeal noted at para 26:
The Unions allege unreasonable privacy
invasion. This Court has made it clear that such bald allegations of
unconstitutionality (including claims of privacy violations rooted in section 8
of the Charter) are not sufficient to establish irreparable harm under
the tripartite RJR-MacDonald test (Groupe Archambault Inc. v.
CMRRA/SOCRAC Inc., 2005 FCA 330 at para. 16).
[158] The Federal Court of Appeal has also more recently highlighted the
importance of establishing irreparable harm, in other contexts.
[159] In Glooscap, the Court of Appeal set a high standard for
evidence of irreparable harm:
[31] To establish irreparable harm, there
must be evidence at a convincing level of particularity that demonstrates a
real probability that unavoidable irreparable harm will result unless a stay is
granted. Assumptions, speculations, hypotheticals and arguable assertions,
unsupported by evidence, carry no weight. See Dywidag Systems International,
Canada, Ltd. v. Garford Pty Ltd., 2010 FCA 232 at paragraph 14; Stoney
First Nation v. Shotclose, 2011 FCA 232 at paragraph 48; Canada
(Attorney General) v. Canada (Information Commissioner), 2001 FCA 25, 268
N.R. 328 at paragraph 12; Laperrière v. D. & A. MacLeod Company Ltd.,
2010 FCA 84 at paragraph 17.
[32] The reason behind this was explained in
Stoney First Nation as follows (paragraph 48):
It is all too easy for those seeking
a stay in a case like this to enumerate problems, call them serious, and then,
when describing the harm that might result, to use broad, expressive terms that
essentially just assert – not demonstrate to the Court’s satisfaction – that
the harm is irreparable.
[160] In Gateway, the Court of Appeal confirmed, at para 15, that“[g]eneral assertions cannot establish irreparable harm. They
essentially prove nothing …” and reiterated the rationale set out in Glooscap.
[161] The jurisprudence from the Court of Appeal is, therefore, consistent
in establishing that irreparable harm must be established with clear evidence,
not hypothetical and speculative allegations. Allegations of a breach of
section 8, without more, will not establish irreparable harm for the purpose of
the tripartite test.
[162] In the present case, the applicants’ allegations are based on the
argument that privacy once lost cannot be regained and this is irreparable
harm. This argument rests on the premise that the “search” or the provision of
information in accordance with the screening measures is unreasonable. However,
the applicants have offered no evidence of the irreparable harm that will be
suffered by one or more of its members.
[163] In Information Commissioner, the Federal Court (Canada
(Attorney General) v Canada (Information Commissioner), [2000] FCJ No 1648
(QL), 187 FTR 1) had found that irreparable harm may result if safeguards for
protecting the information were not followed or were not effective. However,
the Court of Appeal noted at para 19 that no evidence was presented to show
that the provisions at issue were susceptible to breach or that any information
had been improperly released by the Commissioner. The Court of Appeal also
rejected the argument that the fact that the information would be reviewed by
someone gave rise to irreparable harm:
[21] There is no merit to this argument.
Obviously, information must be reviewed by someone to give effect to the scheme
set up by Parliament in implementing the Act. It cannot be seriously argued for
instance that irreparable harm results when an authorized officer reviews
information with the view of ensuring that personal information and other
exempt information is protected from disclosure.
[164] The applicants’ argument that merely providing information is a breach
of their privacy resulting in irreparable harm similarly ignores the safeguards
in place to protect the information and to ensure that it is not disclosed to
anyone, other than those who are trained with respect to the handling and
protection of the information and have a need to know, which would usually be
only the Departmental Security Officer. The Standard describes the measures in
place and the affidavit of Ms Whittle indicates that additional guidelines are
under development. The respondent also noted the redress and review mechanisms
with respect to any concerns that may arise regarding the screening measures. In
addition, the information required to be provided is already in the hands or
records of others (for example, credit reporting agencies have the credit
information, RCMP records include criminal records, applications for employment
include some biographical information, and various social media organizations
store public information, some or all of which an employee may have publicly
posted themselves). The provision of this same information to a Security
Officer, who uses this information only to conduct a security assessment and
does not share it further, cannot be assumed to constitute irreparable harm. No
evidence has been provided to establish that it would.
[165] The applicants noted a particular concern about fingerprinting and
assert that providing fingerprints at a police station, rather than in the
workplace, will exacerbate the aura of criminality. As the respondent noted and
as explained in the affidavit of Chief Superintendent Heffernan, fingerprinting
is not part of the Standard per se. The Standard calls for a criminal
records check. The RCMP has implemented fingerprinting as the state of the art
method to conduct the criminal records check. Fingerprinting was also possible
under the 1994 Standard. The applicants have not provided any evidence of how
attending a police service to provide fingerprints will cause irreparable harm,
particularly given that there are other non-criminal purposes for providing
fingerprints. Moreover, the RCMP policy is not at issue in the underlying
judicial review, nor in this motion.
[166] The Court will not assume that the applicants’ allegations of
infringement of section 8 of the Charter, of a breach of the Privacy
Act or of abuse of discretion will succeed and that, therefore, the
applicants have established irreparable harm.
[167] This would let the applicants “off the hook” for providing evidence
of actual harm to an actual person pending the determination of the judicial
review. In my view, this is not what the Supreme Court of Canada intended in
confirming the three-part test and providing the guidance for each aspect of
that test in RJR-MacDonald. If an applicant only needs to allege a Charter
violation, which would meet the threshold for establishing a serious issue, and
argue that irreparable harm is a foregone conclusion if the Charter
violation is found, then the three-part test becomes a two-part test. This
would ignore the balancing exercise and the factors to be considered before any
determination is made as to whether the expectation of privacy is reasonable
and whether the search is reasonable. It would also ignore the safeguards in
place to minimize any breach of privacy.
[168] In addition, the applicants’ approach is contrary to the clear
guidance of the Federal Court of Appeal that clear evidence of irreparable harm
must be provided.
[169] Although the applicants have not merely asserted a Charter
breach and have advanced arguments with reference to the jurisprudence with
respect to the importance of protecting informational privacy against
unreasonable search, and their allegations of serious issues cannot be
characterized as “bald”, their allegations of irreparable harm are simply
“bald” allegations based on speculation.
[170] The applicants advised that they had no records to indicate how many
and which of their members require only Reliability status. The applicants
suggest that only 10% would require a higher security status or clearance. In a
union of professionals covering a range of professional designations and across
many departments and agencies, that estimate appears very low. I would expect a
more significant percentage of the members to be required to hold a higher
security level. Regardless, there is no evidence from any member(s) indicating
that they will be screened for Reliability status and will suffer irreparable
harm or will be required to disclose a change in their personal status and will
suffer irreparable harm as a result between now and the time the judicial
review is finally determined.
[171] While the Court acknowledges that one or some of the 35,000 members
of the union would likely require that their security screening level be
renewed between now and the determination of the judicial review and that all
members are now subject to the requirement to report significant changes in
their circumstances, for example, a criminal conviction, this does not
establish that irreparable harm will be suffered by those persons. The Court
should not be asked to make assumptions when the onus is on the applicants to
provide some evidence to establish irreparable harm. The applicants have not
provided an affidavit from Mr Aubry setting out his position and the level of
security status or clearance he is required to have. Nor do we know when his
security status will be renewed and whether he would be required to report any
changes in his personal status or other circumstances, let alone how that would
constitute irreparable harm to him pending the determination of the application
for judicial review.
[172] The applicants’ suggestion that they can bring a subsequent motion
with concrete evidence of irreparable harm strikes me as an ultimatum to accept
the applicants allegations of harm without any evidence to spare the Court a
subsequent motion. Moreover, this approach ignores the onus on the applicants
to provide non-speculative evidence of irreparable harm for this motion in
accordance with the three-part test and the jurisprudence which highlights the
requirement to establish irreparable harm.
Where does the Balance of
Convenience lie?
The Applicants’ Position
[173]
The applicants submit that the balance of
convenience favours preserving the status quo, which the applicants
submit is the 1994 Standard. The applicants argue that Treasury Board has not
demonstrated that the 1994 Standard, in place for over twenty years, is
inadequate or that irreparable harm will result if the implementation of the
Standard is delayed.
[174] Alternatively, the applicants take the position that if the status
quo is found to be the 2014 Standard, then only the screening measures
already implemented are part of that status quo.
[175] The applicants rely on two recent decisions which granted interim
relief in the context of a union’s challenge to security screening procedures: Assn
of Management, Administrative and Professional Crown Employees of Ontario v
Ontario (Ministry of Government Services), [2009] OGSBA No 44, 181 LAC
(4th) 385 [Crown Employees], where security clearance measures,
including credit checks, for employees responsible for processing enhanced
driver’s licences, were stayed pending the determination of the policy
grievance, and Canada Post Corp v Canadian Union of Postal Workers (National
Policy Grievance N00-12-00003, Arb Swan), [2013] CLAD No 256 [Canada
Post], where new security screening measures, including criminal records
checks, were stayed for twenty days.
[176] The applicants acknowledge the growth of threats related to
intelligence and security due to terrorism and extremism, but argue that this
is not a relevant consideration for public servants who hold only Reliability
status.
[177] The applicants also argue that the rationale of requiring a Standard
in order to maintain the confidence of Canada’s allies does not apply to public
servants holding Reliability status, who are not involved in positions relating
to intelligence or security and do not have access to secret or top secret
information. Similarly, the applicants dispute that Canadians would lose trust
in public servants holding Reliability status who have not been subject to the
screening measures at issue.
[178] The applicants submit that the growth of the internet since the
previous Standard was implemented is not a compelling justification for the new
screening measures. If it were, changes to the 1994 Standard should have been
made long before 2014.
[179] The applicants dispute that there will be a policy vacuum if the
screening measures at issue in the 2014 Standard for those requiring
Reliability status are enjoined. The applicants submit that the 1994 Standard
could be reinstated. Alternatively, those requiring a higher level of security
status could be exempted from the stay or there could be a combination of the
1994 Standard for those requiring Reliability status and the 2014 Standard for
those requiring other levels of screening.
[180] The applicants’ position is that the harm that will be suffered by
them if the Standard is implemented exceeds the harm to the respondent if the
injunction is granted and its implementation is halted pending the
determination of the application for judicial review.
The Respondent’s Position
[181]
The respondent points out that the relevant
factors to consider in assessing the balance of convenience are the nature of
the relief sought, the harm the parties allege, the nature of the legislative
scheme under attack and the public interest (RJR-MacDonald at 350).
[182] The purpose of an interlocutory injunction is generally to maintain
the status quo. The status quo to be considered when assessing the
balance of convenience is the status quo at the time the application is
made or heard (China Ceramic Proppant Ltd v Carbo Ceramics Inc, 2004 FCA
283 at para 7, 34 CPR (4th) 431). At the time of this application and
presently, the status quo is that the 2014 Standard is in place and
implementation has commenced. An injunction would change the status quo
by disrupting the implementation of the 2014 Standard.
[183] The respondent further submits that the promotion of the public
interest is an important factor in assessing the balance of convenience. The
promotion of the public interest is assumed in cases involving a challenge to a
law, regulation or activity with a public interest purpose (RJR-MacDonald
at 348-349). Once established, the burden shifts to the applicants to establish
that the suspension of the law or, in this case, the 2014 Standard, would be in
the public interest.
[184] The respondent submits that the same principle applies to a
government policy adopted in the public interest (Canada (Citizenship and
Immigration) v Ishaq, 2015 FCA 90 at paras 11-15 [Ishaq]).
[185] The Court must, therefore, assume that the policy was undertaken in
the public interest. Once established, the onus shifts to the applicants to
establish that suspension of the Standard, pending the determination of the
judicial review, is in the public interest.
[186] In Longshore, the Federal Court of Appeal held that the
public interest purpose of security screening regulations adopted to protect
the public and the economy from terrorism and organized crime was undeniable
(at para 46). The Court of Appeal noted in Marine Transportation Reference,
in the context of assessing a breach of section 8, that courts should be
prepared to allow the government a margin of appreciation where national
security is at issue (at para 53). The respondent submits that the same
reasoning applies in the present case. In addition, the public interest in
national security underlying the Standard is clear from the text of the
Standard.
[187] There is also a public interest in maintaining international
relations and in maintaining the trust and confidence of Canadians in the
government employees who administer and deliver programs and services and have
access to a wide range of information from and about citizens. The public has
an interest in ensuring that government employees who handle their information
are properly screened.
[188] The respondent submits that irreparable harm would result from the
granting of the injunction. It would create a policy vacuum, given that the
1994 Standard has been rescinded. It would create a serious gap in Canada’s
security screening capabilities and undermine Canada’s relationships with its
allies and their confidence in Canada’s security scheme. It would leave Canada
without measures to respond to the modern technological environment. In
addition, the suspension of the 2014 Standard would lead to confusion about
which security screening measures can or must be conducted and with respect to
which employees, which increases the risk of adverse information not being
uncovered, and poses a risk to Canada’s interests.
[189] The respondent adds that the applicants’ recent narrowing of its
motion to specific screening measures for employees requiring Reliability
status is not feasible and is impractical. The screening measures for
Reliability status are the foundation for all security clearances and Enhanced
screening.
[190] The respondent submits that the balance of convenience favours the respondent
and the Treasury Board should continue the implementation of the Standard.
The Balance
of Convenience Favours the Respondent
[191] The Supreme Court of Canada explained the third part of the test,
the balance of inconvenience (or convenience), in RJR-MacDonald at
348-349, as follows:
The third branch of the test, requiring an
assessment of the balance of inconvenience to the parties, will normally
determine the result in applications involving Charter rights. A consideration
of the public interest must be taken into account in assessing the
inconvenience which it is alleged will be suffered by both parties. These
public interest considerations will carry less weight in exemption cases than
in suspension cases. When the nature and declared purpose of legislation is
to promote the public interest, a motions court should not be concerned whether
the legislation has in fact this effect. It must be assumed to do so. In
order to overcome the assumed benefit to the public interest arising from the
continued application of the legislation, the applicant who relies on the
public interest must demonstrate that the suspension of the legislation would
itself provide a public benefit.
[Emphasis added]
[192] The Court also noted that many factors must be considered in
assessing the balance of inconvenience and these will vary in each case (at
342-343). In addition, public interest is a key consideration in cases
involving Charter claims and will carry more weight where the
application seeks to suspend an order or policy rather than exempt someone from
its application (at 343, 346-347).
[193] In Harper, the Supreme Court of Canada, in the context of an
application to stay the enforcement of election spending limits, noted the
competing considerations in assessing the balance of convenience at para 5:
Applications for interlocutory injunctions
against enforcement of still-valid legislation under constitutional attack raise
special considerations when it comes to determining the balance of
convenience. On the one hand stands the benefit flowing from the law. On the
other stand the rights that the law is alleged to infringe. An interlocutory
injunction may have the effect of depriving the public of the benefit of a
statute which has been duly enacted and which may in the end be held valid, and
of granting effective victory to the applicant before the case has been
judicially decided. Conversely, denying or staying the injunction may deprive
plaintiffs of constitutional rights simply because the courts cannot move
quickly enough: R. J. Sharpe, Injunctions and Specific Performance (loose-leaf
ed.), at para. 3.1220.
[194] The Court also cited the test in RJR-MacDonald and noted that
a validly enacted law is presumed to be in the public interest at para 9:
Another principle set out in the cases is
that in considering the grant of an interlocutory injunction suspending the
operation of a validly enacted but challenged law, it is wrong to insist on
proof that the law will produce a public good. Rather, at this stage of the
proceeding, this is presumed. As Sopinka and Cory JJ. stated in RJR--MacDonald
Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at pp. 348-49:
When the nature and declared purpose
of legislation is to promote the public interest, a motions court should not be
concerned whether the legislation actually has such an effect. It must be
assumed to do so. In order to overcome the assumed benefit to the public interest
arising from the continued application of the legislation, the applicant who
relies on the public interest must demonstrate that the suspension of the
legislation would itself provide a public benefit.
It follows that in assessing the balance of
convenience, the motions judge must proceed on the assumption that the law --
in this case the spending limits imposed by s. 350 of the Act -- is directed to
the public good and serves a valid public purpose. This applies to violations
of the s. 2 (b) right of freedom of expression; indeed, the violation at issue
in RJR--MacDonald was of s. 2 (b). The assumption of the public interest in
enforcing the law weighs heavily in the balance. Courts will not lightly order
that laws that Parliament or a legislature has duly enacted for the public good
are inoperable in advance of complete constitutional review, which is always a
complex and difficult matter. It follows that only in clear cases will
interlocutory injunctions against the enforcement of a law on grounds of
alleged unconstitutionality succeed.
[Emphasis added]
[195] In Ishaq, the Federal Court of Appeal found that the
principles set out in RJR-MacDonald with respect to irreparable harm to
the public interest apply to policies as well as statutes and regulations if
the policy is adopted to promote or protect the public interest (at paras
11-13).
[196] At para 15, the Court of Appeal held:
In my view, there is no basis to depart from
the general rule that irreparable harm to the public interest will arise if a
policy undertaken for the promotion or protection of the public interest has
been impugned. Based on the comments of the Supreme Court in paragraph 71 of
RJR-MacDonald, this general rule will apply if there is “some indication” that
the Policy in question was adopted by CIC pursuant to its responsibility for
promoting or protecting the public interest in relation to admitting
individuals as citizens.
[197] In summary, with respect to the assessment of the balance of
convenience where Charter claims are made, the jurisprudence has
established the following:
•
Such applications for interlocutory injunctions
raise special considerations and the competing interests must be considered;
for example, an interlocutory injunction may deprive the public of the benefit
of a policy or legislation which may ultimately be found to be valid, whereas
denying the injunction may deprive applicants of constitutional rights simply
because the courts cannot move quickly enough (Harper at para 5).
•
The public interest is a key consideration in
cases involving Charter claims and will carry more weight where the
application seeks to suspend the policy or legislation at issue rather than
exempt a person from its application. (RJR-MacDonald at 343, 346-347).
•
When the nature and declared purpose of legislation
is to promote the public interest, the Court should not be concerned whether
the legislation has in fact this effect; it must be assumed to do so (RJR-MacDonald
at 348-349).
•
The Court should not insist on proof that the
law will produce a public good (Harper at para 9).
•
Only in clear cases will interlocutory
injunctions against the enforcement of a law on grounds of alleged
unconstitutionality succeed (Harper at para 9).
•
In order to overcome the assumed benefit to the
public interest arising from the continued application of the legislation, the
applicant who relies on the public interest must demonstrate that the
suspension of the legislation would in fact provide a public benefit (RJR-MacDonald
at 348-349).
•
The assumption regarding legislation enacted in
the public interest also applies to a policy adopted to promote and protect the
public interest (Ishaq at paras 11-15).
[198] In the present case, the applicants argue, among other issues, that
their Charter protected privacy rights will be violated by the screening
measures of the Standard and seek a suspension of the implementation of these
measures pending the disposition of the judicial review. The public interest
must, therefore, be considered and given considerable weight.
[199] Clearly, the government has the responsibility and authority to make
policy regarding the security screening of its employees and contractors.
Treasury Board wears two hats: as the employer and as the government department
responsible for ensuring that policies are developed and implemented to ensure
the proper administration of the government, including security policies for
employees and contractors.
[200] The respondent has highlighted the government’s motivation for the
Standard, including the domestic and international threat environment, the
physical and operational environment of the government, and that the previous
standard was outdated compared to the standards of Canada’s allies. The
affidavit of Ms Whittle explained the rationale for the 2014 Standard, which
includes the need to respond to the evolving nature of threats to the security
of Canada, to protect the vast amounts of information now accessible in
interconnected information systems and, more generally, to respond to today’s
working environment. That evidence is uncontradicted and provides more than
“some” indication that the Standard was adopted in the public interest. The
Court is, therefore, not required to determine whether the Standard already has
the effect it purports to have (RJR-MacDonald at 348-349).
[201] Although the applicants downplay the impact of changes to government
technology and interconnectivity to security screening, government employees
now have access to government systems and information that were not
contemplated in 1994 or 2002 and the technology is evolving rapidly.
[202] The balance of convenience requires an assessment of the relative
harm to both parties. In weighing and comparing the harm to the applicants and
harm to the respondent, the respondent has provided evidence about the public
interest addressed by the Standard. In addition, the respondent benefits from
the assumption that the policy was developed and adopted in the public
interest. The applicants have not provided any evidence that the public
interest would be harmed by the implementation of the Standard pending the
determination of the judicial review. The applicants only assert that the
rationale advanced by the respondent for the Standard, including that it will
protect the public interest, increases trust of Canadians and complies with
commitments made to international partners, is not sufficient to justify the
Standard. This falls well short of rebutting the assumption and establishing
any harm to the public interest.
[203] The respondent’s characterization of the status quo is
correct; the 2014 Standard has been adopted and implementation activities have
begun and will continue over 36 months. The balance of convenience favours
retaining the status quo.
[204] The applicants relied on Crown Employees and Canada Post to
support their argument that an injunction should be granted despite the
implementation of the screening measures. However, in both cases, which were
decided in the context of policy grievances, the arbitration board did not
apply all aspects of the RJR-MacDonald test and the application for the injunction
was brought before the new measures were instituted. In Canada Post, the
application was brought at the very last minute – but it was before the
implementation of the security measures – and the Board suspended
implementation for twenty days pending determination of the policy grievance.
[205] As the respondent points out, Reliability status is the foundation
for all security clearances and Enhanced screening. Therefore, the applicants’
suggestion that the screening measures should not be implemented with respect
to employees requiring only Reliability status would be impractical, if not
impossible, ineffective and would thwart the intended benefits of the new
screening measures, which are presumed to be in the interest of the public. To
apply different screening measures for employees requiring Reliability status –
for example, only the measures in the 1994 Standard – would require a
reinstatement of the 1994 Standard for particular positions or individuals,
with other employees being screened in accordance with the new measures. In my
view, this would be impractical, inefficient and costly, and would create
inconsistency, confusion and gaps in security screening pending the determination
of the judicial review.
[206] Moreover, many of the same measures now required in the 2014
Standard could have been required on an optional basis pursuant to the 1994
Standard; for example fingerprints could have been required where a name-based
criminal records check was inconclusive, disclosure of outstanding criminal
charges could have been provided on a case-by-case basis, and open source
inquiries were not prohibited and likely occurred without any parameters for
the use of the information. In addition, credit checks could have been
conducted in particular circumstances and for particular positions. As a
result, enjoining the new measures, if the test for an injunction had been met,
may have very little practical impact.
[207] Modernization of the Standard is in the public interest. The
advances of technology cannot be ignored. On the one hand, technology that
allows broad access to networks of information and collaborative work
environments has many benefits, but, on the other hand, permits a wider range
of people to access information they otherwise had no access to and no need to
access. With this comes the need to ensure that all employees who work in such
environments are security screened and informed of their obligations with
respect to their access to this information. Establishing where the line should
be drawn between protecting the privacy of government employees and ensuring
government programs operate in a secure environment is not the role of the
Court on this motion.
[208] The judicial review will grapple with the issue of whether and how
an employee’s reasonable expectation of privacy in terms of sharing personal
information has evolved due to the current environment, what is objectively
reasonable and whether the provision of information in this context is
reasonable.
[209] Pending the determination of the application for judicial review,
the Court will not enjoin the implementation of the 2014 Standard. The
applicants have raised one or more serious issues, but have not established
with any non-speculative evidence that any one of its members will suffer
irreparable harm in the interim period. Moreover, the balance of convenience
favours the respondent’s continued implementation of a policy adopted in the
public interest.
[210] Again, I note the words of the Supreme Court of Canada in Harper
at para 9:
[…] The assumption of the public interest in
enforcing the law weighs heavily in the balance. Courts will not lightly order
that laws that Parliament or a legislature has duly enacted for the public good
are inoperable in advance of complete constitutional review, which is always a
complex and difficult matter. It follows that only in clear cases will
interlocutory injunctions against the enforcement of a law on grounds of
alleged unconstitutionality succeed.
[211] This is not one of those clear cases.